The Issue Whether, under the facts and circumstances of this case, Respondent's license to practice engineering in the State of Florida, should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, L. Thomas Hubbard d/b/a The Hubbard Association, was licensed to practice professional engineering in the State of Florida, having been issued license number PE 006634 on August 17, 1962. Certificate of authorization number EB0003297 was issued to the firm, The Hubbard Association, Inc., on September 25, 1981. In March 1986, Respondent prepared a set of plans for the proposed City of Macclenny Wastewater Treatment Works Improvement Program, Sewage Treatment Facility ("Macclenny project"), and one volume of "Contract Documents and Specifications" ("specifications"), which were submitted to the State of Florida Department of Environmental Regulation, Bureau of Wastewater Management and Grants (Bureau) on or about April 24, 1986. All wastewater treatment plans designs must go to the DER for approval prior to construction, and if a public entity wants grant funding for its wastewater treatment facility, the project must be reviewed and approved by the Bureau (now called Bureau of Local Government and Waste Water Financial Assistance) which administers State grant programs for wastewater treatment facilities. The Bureau reviews grant project plans and specifications to ensure that they: (a) comply with administrative requirements of the grants programs; (b) comply with minimum Federal and/or State technical standards for wastewater facilities; (c) are suitable for bidding; and (d) present a constructible project. The plans for the Macclenny project depict an existing treatment facility, a new clarifier to improve the removal of solids (an expansion of about 130,000 gallons per day in treatment capacity), and a new effluent pumping station to pump to an overland flow field (field) through a force main pipeline to spray risers. The risers would spray the water laterally across the field. Water would collect in a central collection ditch, and run through a final chlorine contact chamber prior to discharge in Turkey Creek. A new agricultural building for equipment storage, and a new holding pond, which is an off-line pond for storage of inadequately treated water, are also depicted. The field in the Macclenny project is roughly 24 acres and is located in a large area between the chlorine contact chamber and the holding pond. The field in this system has 5 cells. A cell is an area of land that can be independently controlled to allow loading/resting cycles in the treatment process. Each cell in a given field should be as near equal in size as possible to provide for equal treatment of the wastewater during the loading/resting cycles. Loading/resting cycles allows a cell within the field to "rest" (no effluent being pumped on to that cell) so maintenance mowing or harvesting can be accomplished and to "load" the other cells to revitalize the bacteria that renews the treatment process. "Load" means to apply the effluent or treated wastewater from the existing facility to the field. Generally, forty percent of the field would be loaded with wastewater at any one time. On December 9, 1985, the Bureau had a predesign conference with Respondent in Macclenny to discuss design items. No plans or specifications for the Macclenny project had been submitted at that time, nor were they submitted at this conference. On February 18, 1986, an in-progress design review was held at Macclenny, with the Bureau staff available to answer Respondent's questions. On March 5, 1986, another in-progress design review meeting was held in Macclenny, with the Bureau staff present, at which time the plans were "fifty percent" (50%) complete. The unsigned and unsealed plans were given to the Bureau for a preliminary review. On March 25, 1986, the Bureau issued a few preliminary comments on the 50% completed plans and specifications. The purpose of the 50% complete review is to help the design engineer complete his plans and specifications. On March 31, 1986, Respondent transmitted to the Bureau a set of plans for the proposed Macclenny project. Respondent's transmittal letter, which the Bureau received with the plans on April 11, 1986, stated that "completed plans" were being transmitted. On April 21, 1986, Respondent transmitted to the bureau an additional set of the same plans for the Macclenny project, which Respondent again referred to as "completed plans" on his transmittal letter form which were received by Bureau on April 24, 1986. This transmittal also included specifications, a design data check list, design calculations, cost estimate, and plan of operation. The plans in this submittal are referred to as "the plans." It was Respondent's understanding that signing and sealing a set of engineering drawings signified a legal obligation that if someone takes the plans and builds a project it will work. Respondent's signature and seal are on the first sheet of the set of plans which was in the April 1986 submittal but not on the specifications. The plans were prepared, signed, sealed and submitted to the Bureau for review by Respondent. Respondent did not place any conditional language or qualification on the plans or write a letter advising the Bureau that the plans were not complete. It was Respondent's understanding that the Bureau would not review a set of plans unless they were signed and sealed, notwithstanding the completeness of the plans. Respondent did not consider the plans as completed, notwithstanding that he had signed, sealed and submitted them to Petitioner as "completed". It was Respondent's understanding that the plans were being submitted for review only, not complete for construction. An engineer may get answers from the Bureau without submitting plans that are signed and sealed as completed, such as the predesign conference or 50% review that occurred in this case. The Bureau considers plans that are signed, sealed and submitted as "completed" for review to be 100% complete and ready to bid. The Bureau considered the plans and specifications which Respondent submitted on April 24, 1986 as being final, complete plans and specifications for final review by the Bureau. The Bureau reviewed the plans assuming them to be complete and followed normal procedures for reviewing a complete set of plans and specifications. On June 19, 1989, the Bureau issued 52 written comments based on its review of the plans and specifications it had received in the April 24, 1986 submittal from Respondent. The plans and specifications were submitted to the Department of General Services (DGS) by the Bureau for a review and opinion because the Bureau was concerned about the structural design. DGS responded to this request through Jim Berkstresser, P.E. on June 25, 1986. By cover letter dated July 18, 1989, Respondent filed written responses to the Bureau's 52 comments. The Bureau did not approve Respondent's plans and specifications for the Macclenny project submitted on April 24, 1986. On September 5, 1986, Respondent resubmitted plans in response to the Bureau's 52 comments. These plans had the same configuration as the April submittal regarding the overland flow treatment. On September 29, 1986, Respondent met with David Wolfe to discuss the field configuration for the proposed overland flow system and other outstanding issues related to the revised contract documents. The principal concerns were non- uniform flow and significant erosion potential. Respondent's plans did not follow accepted design criteria. At this meeting field configurations were discussed, as well as guidelines to be followed in design of the overland flow field, and a general field layout were developed. Respondent submitted another set of plans which the Bureau received on October 30, 1986, and that set was approved and stamped accepted by DER-BWMG on December 22, 1986. All sheets in the approved set are dated August 20, 1986, with the exception of the cover sheet on which Respondent failed to date his seal and signature, and sheets G-6 and G-7 which are dated October 24, 1986. Respondent signed and sealed the cover sheet and sheet G-7 of the approved set of plans, but did not seal any other sheets in the approved set of plans. A signature and seal on a set of plans indicates that the plans were prepared by, or under the direct supervision of the person signing and sealing them, and that the plans are complete and depict a project that will perform its intended function. A signature and seal on a set of plans means the engineer assures that the design is his design and that the plans and specifications are ready to be bid for construction. The design should contain criteria and information significant to ensure the project will work. Sheet flow is the primary treatment mode in an overland flow system. Sheet flow is where a thin layer of water is induced to flow in a very controlled atmosphere across a length of land that is functioning very similarly to a trickling filter. The acceptable range of slope of an overland flow system is 2% to 8% with the best results obtained in the lower range because of a longer "residence time". "Residence time" is the amount time the wastewater is on the field for treatment. The slopes must be even and uniform to maintain a constant velocity so as to minimize the potential for erosion and to maintain a constant depth of water throughout the filed so as to maximize the treatment. Cross slopes should be minimized and topographic lines should be as close to parallel as possible on the field. The plans for the Macclenny project shows: (a) slopes ranging from less than 2% up to 6%; (b) multiple compound slopes across the field and; (c) topographic lines that are not parallel. The specifications for the field do not set out the acceptable tolerances on the slopes or the acceptable level of compaction of the field for the contractor who is to construct the field and; therefore, lacks control over the final product. Contours in an overland flow field are important, and while it is desirable for them to be on 1-foot intervals, contours at intervals of 2 feet are acceptable provided the plans and specifications address what happens between the contours. Respondent's plans and specifications show contours at intervals of 2 feet but do not address what happens between the contours. The plans of the facilities that were approved prior to the submittal of any plans by Respondent called for a 2- 3 week loading/resting cycle. The standard practice is to have all cells within an overland flow field to be of equal size so that the area to be loaded at any given period of time is the same size. The cells in the overland flow field in the Macclenny project as depicted by the plans are not of equal size, and if operated on a 2-3 week loading/resting cycle would not provide a consistent amount of treatment and thereby result in varying levels of treatment of the effluent. It is standard practice to provide performance specifications for seeding the field with the primary grass cover and for overseeding when necessary to prevent wind and water erosion. There were no performance specifications in the plans and specifications on the Macclenny project submitted by the Respondent. Agricultural equipment is an integral part of the overland flow field system and has a direct bearing on whether the system will function over the long run. Specifications for agricultural equipment are necessary to determine if the system will work properly. There were no specifications for agricultural equipment submitted by the Respondent in the plans. It is standard practice to furnish spray nozzle specifications, such as nozzle size, degree of fanning, characteristics under varying pressures and how much water will be discharged by the nozzle, in a set of plans and specifications for an overland flow field. Respondent's specifications for the Macclenny project did not contain the necessary specifications for the spray nozzles. Compacting is a standard practice, and it is standard practice to show compaction requirements on plans or specifications. The usual practice is to investigate the soil and specify compaction, usually based on a foundation report by a geo-technical engineer, showing the safe beading capacity of the soil in what condition, with recommendations for compaction. The Respondent's specifications do not call for compaction of the soil under the clarifier slab. However, the Respondent's specifications do call for compaction in the holding pond and situations where an area is over-excavated and backfilled. Should the area under the clarifier slab be over- excavated and backfilled, then compaction is covered in the specifications but compaction would not be covered unless this occurs. Therefore, since the weight of the slab is carried by the soil beneath it, specifications for compaction should have been included in Respondent's specifications for any situation. Changes in temperature causes concrete to expand or contract which may result in cracking. Placement of a concrete slab may result in the slab bending which may result in cracking. Therefore, reinforcing a concrete slab is required to maintain the slab's integrity. The thickness of a concrete slab will determine the distribution of the reinforcing so that cracking is minimized. The clarifier slab in the Macclenny project is depicted as being 12 inches thick and shows number 6 bar reinforcing on 6 inch centers in the top of the slab but no reinforcing in the bottom of the slab. Failure to require reinforcing in the bottom of the slab could result in the slab cracking due to significant changes in temperature and soft spots in the soil beneath the slab. Failure to place reinforcing in the bottom as well as in the top of the slab is not in accordance with standards of the code of the American Concrete Institute (ACI), revised in 1983, and is a structural weakness. The chlorine contact chamber as detailed on sheets 5-6 and 5-7 is like a rectangular concrete box beneath the earth where the earth is within a few inches of the top of the walls. The walls are vertically reinforced with number 4 bars on 12 inch centers placed in the center of the 8 inch thick wall. When the tank is empty the reinforcing bars will be approximately 160 per cent overstressed from the active pressure of the earth. Additional reinforcing is needed in the walls to meet ACI standards. There are deficiencies in the vertical wall reinforcing of the chlorine contact chamber as detailed on sheets 5-6 and 5-7 of the Plans. On sheets 5-3, 5-4 and 5-7 of the plans, reinforcement through the construction joints is incorrectly detailed to assure that cracking of the concrete will not occur. Construction joints occur between different pours of concrete, such as where the walls meet the top of the bottom slab. The concrete bottom of the holding pond as detailed in sheet 5-8 of the Plans is large enough to require expansion joints to prevent cracking as the slab expands and contracts due to changes in the weather, yet no expansion joints are shown for the slab as detailed on sheet 5-8 of the plans. Neither the collection ditches nor the spray riser bases as detailed on the plans show any reinforcing to maintain the integrity of the concrete. While this is not a major structural weakness, it indicates a failure to comply with standard structural engineering practices. Although the plans call for relocation of an existing drainage ditch, the Respondent failed to consult DER regarding the permitting of such drainage ditch. A detention time of 30 minutes is required to properly disinfect wastewater and is-basic knowledge for all civil engineers, yet the plans called for only a fifteen minute detention time. It is standard engineering practice to provide flood level elevations on the site plans. Respondent failed to provide flood level elevations for the Macclenny facility site plans. The plans failed to: (a) provide elevations for high water alarm and pump off settings; (b) provide specifications for flume liner on sheet M-4; (c) show how to close an existing outlet on the chlorine contact chamber; (d) show where an effluent pump station was to be located; (e) show pressure relief valve locations and; (f) indicate quantities for purpose of contract bidding. The specifications list equipment and work items, such as pumping equipment, grit storage tank, case-out assembly, telescoping valve, air diffusers, portable pump, hose and couplings, that are inapplicable to the Macclenny project. There are inconsistencies in the plans and specifications, such as: (a) the plans showing one clarifier while the specifications call for two clarifiers, (b) the plans showing a 150 pound chlorine cylinder as opposed to a 1-ton chlorine cylinder in the specifications and; (c) the plans showing the clarifier with a 38-foot diameter while the specifications calls for a clarifier with a 40-foot diameter. Respondent was negligent in submitting incomplete plans to the Bureau as "completed plans" and in failing to utilize due care and failing to have due regard for acceptable standards of engineering principles, with regard to the content of those plans which he submitted as "completed plans".
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, L. Thomas Hubbard guilty of violating Section 471.033(1)(g), Florida Statutes, and for such violation impose an administrative fine of $1,000.00 and suspend from the practice of engineering for a period of thirty (30) days, stay the suspension and place the Respondent on probation for a period of one year under terms and conditions the Board deems appropriate. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0096 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1. Rejected as not being necessary to the conclusions reached in this Recommended Order. 3.-12. Adopted in Findings of Fact 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, respectively, but modified. 13. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 14.-19. Adopted in Findings of Fact 12, 13, 14, 15, 16, and 17, respectively, but modified. Rejected as being immaterial or irrelevant or subordinate or unnecessary. Adopted in Findings of Fact 17 and 18 but modified. 22.-33. Adopted in Findings of Fact 19, 20, 21, 22, 23, 24, 24, 25, 26, 27 and 27, respectively, but modified. 34. Adopted in Findings of Fact 17 and 18, but modified. 35-37. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 38. Adopted in Findings of Fact 28 and 29, but modified. 39.-40. Rejected as being immaterial or irrelevant or unnecessary or subordinate, but see Findings of Fact 37 and 38. 41.-5O. Adopted in Findings of Fact 28, 32, 29 (28-31), 29, 29, 32, 30, 32 and 32, respectively, but modified. 51. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 52.-53. Adopted in Findings of Fact (28-33) and 32, respectively, but modified. 54.-55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. Adapted in Finding of Fact 55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 58.-62. Adopted generally in Findings of Fact 28-33. 63.-66. Adopted generally in Findings of Fact 34-36. 67.-72. Adopted generally in Finding of Fact 37. 73.-74. Adopted generally in Finding of Fact 38. 75.-76. Adopted generally in Finding of Fact 39. 77.-79. Adopted generally or covered in Findings of Fact 13-15 and 28-39. 80.-82 Adopted generally or covered in Findings of Fact 40- 41. 83.-90. Adopted generally or covered in Findings of Fact 42 and 43. 91.-96. Adopted generally or covered in Findings of Fact 44 and 45. 97.-104. Adopted generally or covered in Finding of Fact 46. 105.-107. Adopted generally or covered in Finding of Fact 47. 108.-109. Adopted in Finding of Fact 48. 110.-115. Adopted generally or covered in Finding of Fact 55. 116.-117. Adopted in Finding of Fact 49 and 50. 18. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 119. Adopted in Finding of Fact 51. 120.-124. Adopted in Finding of Fact 52. 125. Rejected as immaterial or irrelevant or unnecessary or subordinate. 126.-127. Adopted in Finding of Fact 52. Adopted in Finding of Fact 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 53. Adopted in Finding of Fact 55. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 13-15. Adopted in Finding of Fact 19 except last sentence that is rejected as being immaterial or irrelevant. Rejected as being a restatement of Administrative Complaint and not a Finding of Fact but see Findings of Fact 15 and 19. Rejected as being a restatement of John Sowerby's testimony and not a Finding of Fact, but see Findings of Fact 15, 17 and 18. Adopted in Finding of Fact 15. 6. Restatement of David Wolfe's testimony COPIES FURNISHED: Rex Smith Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Wings S. Benton, Esquire 1020 D. Lafayette Street, Suite 205 Post Office Box 5676 Tallahassee, Florida 32314-5676 L. Thomas Hubbard, pro se THA Building 3110 Spring Glen Road Jacksonville, Florida 32207
The Issue General Project Description 6 Economic Benefits and Cost Savings from Project 7 Fuel Cost Savings from Conversion to Orimulsion 7 Socioeconomic Impacts and Benefits of the Project 10 Project Site and Vicinity 13 Lan Use and Comprehensive Plan Consistency 14 Existing Plant and Facilities 16 Orimulsion Conversion Project; Modified and New Facilities 20 Fuels and Fuel Delivery, Storage and Transportation 20 Air Emission Controls 22 Water Uses and Treatment 24 By-Product Reuse and Disposal 24 Rail and Road Improvements 28 Surface Water Management Systems 29 Project Construction and Schedule 30 Transportation 31 Noise Impacts 34 Archaeological and Historic Sites 34 Air Emissions, Controls, and Impacts 34 Existing and Proposed Emissions 34 Best Available Control Technology for 36 Nox Air Quality Impact Analysis 45 Effect of Proposed NOx Emissions on Ozone Levels 46 Effect of Proposed NOx Emissions on Water Quality 51 Human Health Risks Associated with Proposed Air Emissions 57 Plant Water Supply and Use 59 Water Supply 59 Cooling Pond 62 Impacts of Groundwater Withdrawals and Discharges 64 Wetland Impacts and Mitigation 68 Impacts to Flora and Fauna Including Listed Species 70 Impacts of Water Withdrawals on Little Manatee River and Tampa Bay 71 Potential Impacts of Fuel Spills 75 Spill Prevention 76 Spill Mitigation 79 Ecological Effects of Orimulsion Released in Tampa Bay 87 COSAP's Comparative Ecological Risk Assessment (CERA) 90 COSAP CERA Conclusions 92 Peer Review of COSAP Research and Conclusions 92 Effects of Estrogenic Compounds Following a Spill 93 Summary of Comparative Spill Risks 95
Findings Of Fact General Project Description FPL proposes to convert its existing 1600 megawatt (MW) power plant in Manatee County, Florida (the Plant), to the use of Orimulsion. The existing Plant currently operates only on relatively expensive low-sulfur fuel oil. The conversion of the Plant to the use of Orimulsion will realize significant savings in fuel costs to FPL's customers because Orimulsion will be supplied at prices much lower than the current costs for the fuel oil burned at the Plant. As a result, the Project will allow FPL to increase the average annual capacity factor of the Plant from its historical level of 30 percent up to 87 percent. Orimulsion is a mixture of bitumen, a heavy hydrocarbon, and water. Orimulsion is produced in Venezuela and will be supplied to FPL under a 20-year contract with Bitor America Corporation (Bitor). The new fuel will be shipped by Bitor America to Tampa Bay, unloaded by FPL at an existing FPL fuel terminal at Port Manatee, and sent to the Plant via an existing pipeline. The Project will involve installation of new pollution control equipment, new combustion controls, and efficiency enhancements to the existing boilers. The air pollution control equipment will be designed and constructed by Pure Air, a partnership of Air Products and Chemicals Inc. and Mitsubishi Heavy Industries America Inc. Pure Air of Manatee, a subsidiary of Air Products and Chemicals, will operate the pollution control equipment. Other than this equipment and ancillary facilities, few changes to the existing plant itself will be required. Economic Benefits and Cost Savings from Project Fuel Cost Savings from Conversion to Orimulsion The conversion of the Plant to burn Orimulsion is the best way that FPL has found to reduce the cost of the electricity it produces and to reduce FPL's dependency on any single type of fuel. The conversion is projected to result in approximately $4.0 billion (or $1.5 billion net present value in 1998 dollars) of savings to FPL's customers over 20 years under FPL's base case, or most likely fuel price forecast. These savings represent the net amount by which FPL's savings in fuel costs ($4.4 billion) and SO2 emission allowance costs ($169 million) are projected to exceed FPL's revenue requirements for the Plant modifications over 20 years ($180 million) and increased operation and maintenance costs ($382 million). FPL sought advance approval from the Florida Public Service Commission (FPSC) of the method for recovering the costs of the Project and the method of passing through to its customers the Project's net savings. In Order No. PSC-94-1106-FOF-EI, issued September 7, 1994, the FPSC found that "FPL's plan to convert its two Manatee units to burn Orimulsion is reasonable and prudent." Under that order, the net savings from the Project will be passed on directly to FPL's customers through reduced charges in the fuel cost recovery clause portion of customers' monthly bills. These fuel savings result because Orimulsion is priced by contract equivalent to the price of coal delivered to the St. Johns River Power Park plant in Jacksonville. The price of that coal is much lower than the price of oil or natural gas that FPL purchases, and coal prices are forecast to remain low and stable in the future. It is expected that the Plant's reduced fuel cost will cause the Plant to run more often under the principle of economic dispatch by which FPL operates its generating system. Orimulsion burned at the Plant will also displace the burning of higher- priced fuels elsewhere on FPL's system, to the extent not required as a result of population growth or changes in arrangements for the purchase of power, as other units using higher-priced fuels are operated less frequently. To determine whether the Project would provide savings under extreme conditions, FPL performed what it called an "acid test" analysis which assumed that future prices of oil and gas would not continue to diverge from the price of coal and Orimulsion. Under this conservative (though unlikely) scenario, the Project would still produce approximately $655 million ($261 million net present value in 1998 dollars) of savings to FPL's customers over 20 years. The Project is a continuation of the effort that FPL began in the late 1970's to obtain a balanced fuel mix, so that future volatility in the price of oil, and events such as the oil shocks of the 1970's, would not affect the cost of electricity to FPL's customers. FPL has reduced the amount of oil-fired generation in its fuel mix from 56 percent in 1981 to 31 percent in 1994 by the addition of nuclear and coal plants to its system, as well as by obtaining firm supplies of natural gas. With the conversion of the Plant to Orimulsion, oil generation would be reduced to 9 percent of FPL's energy mix by 1999. From an economic perspective, the Plant is the best site for an Orimulsion conversion. Because of economies of scale in converting a large plant to a new fuel, and because the Plant currently burns one of the most expensive grades of fuel oil on FPL's system, conversion of the Plant maximizes the Project savings. The Plant has port access and a pipeline which facilitates the safe and economic delivery of Orimulsion. As one of the newest plants in the FPL system, the Plant will have a long time in service following conversion. It is reasonable to expect that Orimulsion will be a stable fuel source. Bitor America Corporation is a wholly-owned subsidiary of Bitor S.A., which in turn is a wholly-owned subsidiary of Petroleos de Venezuela, the national energy company of Venezuela and the fourth largest energy company in the world. Petroleos de Venezuela companies have an excellent record of contract performance. The recoverable reserves of bitumen from which Orimulsion is made exceed 40 billion metric tons, comparable to the amount of crude oil in Saudi Arabia. Fuel production facilities planned and in place in Venezuela are more than adequate to meet the needs of the Plant. The conversion of the Plant to natural gas is not a viable alternative. Such a conversion would not reduce electricity costs to FPL's customers, but instead would increase them by approximately $233 million over 20 years due to the relatively higher cost of natural gas compared to the No. 6 fuel oil currently used at the Plant. Socioeconomic Impacts and Benefits of the Project The Project will have a positive impact on the economy of Manatee and Hillsborough Counties. Construction employment will average 347 direct employees over the two-year construction period, for a direct payroll ranging from $12.5 to $17.5 million in 1996, $19.0 to $24 million in 1997, and over $2 million in the first quarter of 1998. An average of 333 indirect jobs also will be created during construction by increased expenditures of construction employees, for average indirect wages of $6.4 million a year. Operation of the Project will result in 190 new jobs with an annual payroll of about $4.5 million. This includes 40 direct permanent jobs at the Plant with an annual payroll of $1.5 to $2.0 million, and 69 additional indirect jobs with a $1.3 million annual payroll. Trucking of limestone, gypsum and fly- ash will create another 45 direct jobs and 36 indirect jobs, with a combined annual payroll of $1.5 million. FPL's property taxes paid to Manatee County government will increase by $700,000 per year and port charges paid by FPL to Port Manatee for fuel shipments through that port will more than triple, to about $2.2 million per year. Assuming that the new operations employees will be new residents to the area, the increased employment will result in approximately $203,000 of additional costs to Manatee County for community services. This compares to additional tax revenues to Manatee County from those families and the Plant of about $2,530,000 per year, for a net positive governmental revenue impact of about $2.3 million per year. Additional annual tax revenues of $108,000 to Hillsborough County are within 10 percent of the additional annual cost of services of about $119,000 per year for employees expected to reside in that County. Fuel savings from the Project will have a significant positive impact on economic activity in the state. The $4.0 billion in net savings over 20 years will generate an average of $136 million a year in increased sales or business activity in the state, $41 million a year in increased earnings, and an average of 2,056 new jobs, in addition to the local economic impacts of construction and operation of the Plant. Overall electric bill savings to tax-supported governmental customers of FPL will range from $1.75 million to $22.83 million a year, even assuming that these customers' electric consumption does not increase from 1994-95 levels. This money will be available either to fund additional governmental services, or to reduce or offset tax increases. The Project will enable FPL to be a more competitive electric utility by substantially reducing its fuel costs, which are about 99 percent of the variable costs of generation, about two-thirds of the total cost of generation, and about one-quarter of the retail price of electricity. Conversion will make the Plant cost competitive with coal-fired plants in adjacent and nearby states, with which FPL will have to compete if and when retail wheeling -- the ability of customers to choose their supplier of electric generation -- becomes a reality in Florida. In the long run, by allowing FPL to remain a low-cost provider of electricity, the Project will help keep electric generating business activity in Florida, with the associated jobs, tax revenues, and economic activity. This creates a win- win-win situation for FPL's customers, FPL's investors, and the citizens of Florida. Project Site and Vicinity The site of the Project is within the existing 9,500- acre Plant site. This site is located in the unincorporated, north-central area of Manatee County, Florida. The site is approximately 15 miles northeast of Bradenton and 25 miles southeast of Tampa. The site is located north of State Road 62 and approximately 5 miles east of both the community of Parrish and U.S. 301. Saffold Road marks the eastern boundary of the 9,500-acre site while an FPL-owned railroad line is along the western boundary of the site. The Little Manatee River flows through the northern boundary of the Plant site. Principal access to the Plant site is provided from State Road 62 which intersects with U.S. Highway 301 to the west. The FPL-owned rail line that serves the site connects to the Palmetto area, southeast of the Plant. An existing FPL fuel pipeline connects the Plant site to Port Manatee, approximately 14 miles to the northwest. Existing electrical transmission lines run east and west from the Plant site. The Project will be undertaken within a 470-acre parcel which encompasses the existing Plant and other existing facilities, including two 500,000-barrel fuel storage tanks, wastewater treatment areas, switchyards, and other buildings. The Project site also includes areas that are currently used for agriculture that may be used for storage and disposal of by- products from the new pollution control equipment. The existing 9,500-acre site includes a 4,000-acre cooling pond which provides cooling water to the power plant. A makeup water pumping station located on the Little Manatee River provides makeup water to the cooling pond. A spillway structure for emergency releases during high water levels in the pond is also located along the Little Manatee River. Other on-site facilities include various maintenance buildings, an existing electrical switchyard and an on-site rail spur. The other areas of the Plant site are used for various agricultural, cattle or timber operations. Existing land uses within 5 miles of the Plant site consist mainly of agricultural and pasture lands, interspersed with low-density residential areas and undeveloped vegetative areas. Individual residences are located on one of the two outparcels that are located within the boundaries of the Plant site, as well as along State Road 62 at the southern perimeter of the site and along Saffold Road to the northeast. FPL also owns and operates an existing fuel terminal along the eastern edge of Tampa Bay as an associated facility for the Plant. The 55-acre fuel terminal is located at Port Manatee, approximately 14 miles northwest of the Plant in the unincorporated area of northwestern Manatee County. Light and heavy industrial uses are located in the immediate area surrounding the terminal. Land Use and Comprehensive Plan Consistency The site is an appropriate location for the Project from a land use planning perspective and will not cause any adverse impact on land use. The Project involves installation of pollution control equipment at an existing power plant site that has been used for power generation since the 1970s. The area in which the Project will be undertaken is located some distance from adjacent to surrounding properties. A 350-foot landscaped buffer will be established adjacent to the nearest property west of the Project area. A landscaped buffer will also be established to screen the site from residences located to the south along State Road 62. The Project also will comply with the development standards contained in the Manatee County Land Development Code, with the exception of one aspect of the landscape standards for which FPL is seeking a variance. The Manatee County Code, Section 715.6.5, allows the County Planning Director to approve relocation of up to 30 percent of the required landscaping to another portion of the site. The requested variance would allow 100 percent of the landscaping materials normally installed as foundation plantings for new buildings and parking lots to be placed instead within the designated landscape buffers near the boundaries of the site. The variance would allow landscaping to be done where it would benefit the most people. The Project will comply with all other applicable ordinances and regulations of Manatee County, including the County noise ordinance and building codes, if the 53 conditions recommended by Manatee County are included in the certification order. The Project, if approved with the conditions proposed by Manatee County, is consistent with the goals, objectives and policies of the adopted Manatee County Comprehensive Plan with one exception relating to the wetland mitigation ratios contained in the Comprehensive Plan. The site is designated for power plant use under the Manatee County Future Land Use Map under both the agricultural rural classification and the Public/Semi-Public I uses. Objective 3.2.1 of the County's plan is to maintain and enhance water quality and quantity of Lake Manatee; the Project is consistent with the septic tank use and other policies through which the objective is to be achieved under the plan. The Project will comply with Manatee County zoning standards. The Project site also is consistent with the goals and objectives of the State Comprehensive Plan and the Comprehensive Regional Policy Plan of the Tampa Bay Regional Planning Council. Existing Plant and Facilities The Plant currently consists of two oil-fired generating units of 800 MW each, for a total generating capacity of 1600 MW. The first unit went into service in October 1976, and the second unit in December, 1977. Electricity is generated in the existing units by combusting fuel in the boilers. The heat of combustion converts water in the boiler tubes to high pressure steam. This steam drives a large steam turbine which is connected to an electrical generator. Electricity then flows out to the existing switchyard and out of the site over the existing transmission lines. The Plant currently burns low-sulfur No. 6 fuel oil with a sulfur content no greater than 1 percent. No. 6 fuel oil is principally the residue of operations in which light and medium crude oils are fractionally distilled and processed to produce gasoline, diesel fuel, and other products. As the "bottom of the barrel," No. 6 fuel oil is a heavy viscous material from which higher value products can no longer be economically recovered. The Plant is also currently permitted to burn No. 2 fuel oil, natural gas, and on-specification used oil from FPL operations. Existing controls for air emissions include several combustion techniques within the boiler to minimize formation of nitrogen oxides (NOx). Particulate matter (PM) from fuel combustion is controlled using mechanical dust collectors that use centrifugal force to remove PM from the flue gas. Emissions of sulfur compounds, such as sulfur dioxide (SO2), are controlled only by limiting the sulfur content of the fuel oil. Cooling water is continuously pumped from the cooling pond through the Plant condensers and heat exchangers that absorb the rejected energy from the steam turbine. Heated water from the condensers is discharged back into the cooling pond where the energy is dissipated to the atmosphere through evaporation. Ultimately, the cooling water circulates through the pond back to the Plant intake structure and is recirculated through the Plant condensers and heat exchangers. Water loss is continually experienced in the cooling pond as a result of evaporation. Water losses from the pond also occur due to seepage through the pond embankment and bottom and as a result of other Plant water consumptive uses. Makeup water is therefore required to maintain the pond at its design operational level. Makeup water is currently provided through a combination of rainfall and water diverted from the Little Manatee River. A system of toe drains around the perimeter of the pond also captures the seepage through the embankments and returns that water to the pond. Service water, including process water for current operation of the Plant, is primarily obtained from the cooling pond, with three existing on-site wells used as a backup source. Service water is used for various processes in the Plant, such as soot blowing from boiler surfaces and for fire protection. The Plant process water system also provides ultra-pure water for the Plant, such as for makeup to the steam and water cycles in the power generating process. The existing wastewater treatment facility for the Plant includes two lined neutralization basins, two lined solids settling basins, a drying basin, and a lined stormwater basin for collection of runoff from equipment areas. Such stormwater runoff is stored in the stormwater basin, drained through an oil/water separator and recycled to the cooling pond. Industrial wastewaters are treated either in the neutralization basins or in the solid settling basins and recycled to the cooling pond. Collected solids are periodically transferred to a drying basin where they are stored and dried prior to off-site disposal in a licensed facility. FPL receives No. 6 fuel oil for the Plant at Port Manatee, to the northwest. Fuel is stored at the existing fuel terminal near Port Manatee, transferred to the Plant via a 14- mile-long buried pipeline, and then stored in storage facilities at the Plant. At Port Manatee, vessels are moored at the port berth and unloaded through dockside unloading hoses. Fuel unloading is monitored continuously by personnel at the dock as well as operators at the terminal. Fuel is transferred from the port berth to the FPL Port Manatee terminal via a 1.7-mile, 30-inch diameter pipeline which is cathodically protected against corrosion and hydrostatically tested annually to insure its continued integrity. At the Port Manatee terminal, fuel is stored in two 500,000-barrel fuel storage tanks that are contained within earthen berms to provide secondary containment in the event of an overfill or loss of a storage tank. The four fuel storage tanks at Port Manatee and at the Plant are equipped with safety shutdowns to prevent overfilling of the tanks. The four storage tanks are cathodically protected against corrosion. Fuel is transferred from the Port Manatee terminal to two 500,000-barrel fuel storage tanks at the Plant via a 14-mile- long, 16-inch-diameter steel pipeline. The pipeline is jacketed and coated to provide corrosion resistance and also is cathodically protected by an impressed electrical current to dampen corrosion of the pipeline. The pipeline is equipped with a midpoint block valve as well as valves at the terminal and at the Plant ends of the pipeline. Both pipeline facilities are patrolled at least 26 times a year by FPL and are enrolled in the State's "One-Call" locating system to advise FPL in the event that excavation occurs near the pipelines. During all transfers of fuel, continuous monitoring of the transfers is conducted by monitoring the volumes of fuel transferred across the pipeline. Orimulsion Conversion Project Modified and New Facilities Conversion to Orimulsion will involve changes to several of the existing facilities and the installation of new equipment, principally for the control of air emissions. Enhancements to heat transfer surfaces within the existing boilers will allow them to operate more effectively and efficiently with the firing of Orimulsion. Fuels and Fuel Delivery, Storage and Transportation Orimulsion is an emulsion composed of approximately 70 percent bitumen and 30 percent water, with less than 0.65 percent additives, including a nonylphenol polyethoxylate surfactant. The surfactant in Orimulsion comprises approximately .17 percent (+/- .02 percent) by weight of Orimulsion, and may be increased in the future to as much as .2 percent (+/- .02 percent), for a maximum of .22 percent. Orimulsion is currently used as a boiler fuel in 6 power plants in England, Denmark, Japan and Canada. After conversion, FPL may use high-sulfur fuel oil (HSFO) with maximum sulfur content of 3.0 percent, as an alternative fuel at the Plant if Orimulsion is not available. Low-sulfur fuel oil will also be an alternative fuel. No. 2 fuel oil, natural gas and/or propane may be fired during unit startup. On- specification used oil from FPL operations may also be fired. Orimulsion will be transported from Venezuela to Port Manatee by Bitor America Corporation. Ownership of the Orimulsion will transfer to FPL when the fuel passes the flange between the vessel and offloading hose at Port Manatee. Following the conversion of the Plant to Orimulsion, there will be approximately 100 vessels each year delivering Orimulsion to Port Manatee, which is approximately double the number of current No. 6 fuel oil deliveries to FPL. The system used currently for delivery of No. 6 fuel oil from Port Manatee to the Plant will be used in the future for deliveries of Orimulsion. Prior to the conversion of the Plant to Orimulsion, new unloading hoses will be installed at Port Manatee and pressure tested to insure their structural integrity. All four fuel oil storage tanks will be inspected and improved through the installation of internal fiberglass liners. The 14-mile fuel delivery pipeline will be electronically inspected using a "smart pig" that will survey the wall thickness of the entire circumference of the pipeline. Following conversion, a "smart pigging" inspection program will be implemented for the 14-mile pipeline with the first inspection within 30 months and then conducted every five years. The monitoring system for the 14- mile fuel pipeline will be upgraded to incorporate a computer- based monitoring system that will be tied into FPL's leak detection system for the pipeline. This new leak detection system will lower the detection limit for the pipeline down to 25 barrels. In addition, FPL will continue to perform tank-to-tank mass balances and end-of-batch inventory reconciliation to track fuel leaving the terminal and arriving at the Plant. These measures will allow FPL to detect a leak as small as 1/64th of an inch in the pipeline. These fuel storage and transportation facilities will continue to be operated in accordance with all applicable regulations. Over the past 17 years, FPL has experienced no leaks or breaks in these pipelines. In the event a future leak or break occurs, operation of the pipeline involved will be halted immediately upon detection and the pipeline will be surveyed to locate evidence of fuel outside the pipeline. FPL would then conduct appropriate cleanup and remediation, using techniques similar to those used to clean up fuel oil spills on land. Air Emission Controls Within the boilers, the existing fuel burners will be replaced with new low-NOx burners that will control the formation of NOx during combustion. Reburn technology also will be installed in both boilers to stage the combustion process and further minimize the formation of NOx. The new low-NOx burners and reburn fuel injectors will replace the existing NOx controls for the Plant. Two electrostatic precipitators (ESPs) will be installed for each generating unit to control particulate matter (PM) resulting from fuel combustion. The ESPs remove PM by passing it through an electrical field. A negative charge is placed on the PM, causing it to migrate toward positively charged plates in the ESP. The PM collects on the surface of the plates and is periodically removed by rapping the plates, causing the layer of collected dust to shake loose and fall to compartments at the bottom of the ESP as flyash. Approximately 90 percent of the PM entering the ESP will be removed. The ESPs also will remove toxic substances from the flue gas. Following the ESPs, a flue gas desulfurization (FGD) unit, or scrubber, will remove SO2 and other sulfur compounds from the flue gas. Flue gas enters the scrubber where it meets a limestone/water slurry mixture and the limestone reacts with the SO2, forming calcium sulfate or gypsum. The water and gypsum fall into a tank at the bottom of the scrubber. The clean flue gas then passes through a mist eliminator, which recovers some of the water vapor in the flue gas. The clean flue gas then exits the Plant via the existing chimneys or stacks. The scrubber will remove 95 percent of the SO2 formed during combustion. ESPs and scrubbers are well-proven technologies that have been in use for more than 30 years. Limestone used in the scrubber will be delivered by truck to the site. It will be transferred to a receiving hopper and then into on-site limestone storage silos, which will provide three days of storage. A backup limestone storage pile, providing 30 days of supply, will also be established to insure limestone availability if deliveries are interrupted. The limestone will be processed in a ball mill, combining it with water and grinding it to a fine consistency to create the limestone slurry used in the scrubber system. Measures will be taken during delivery and transfer of limestone to control emissions of PM and fugitive dust that might be generated. These measures include covered trucks, paving of on-site roadways and use of covered transfer conveyors. The limestone will be moist when received and therefore will not be dusty. However, water sprays will be used on the open storage pile if it gets dusty from prolonged dry periods. Water Uses and Treatment The conversion to Orimulsion will increase service and process water uses within the Plant. The principal increase in such water use will be for the new pollution control equipment. Water from the groundwater wells will be used directly in the scrubber with a membrane softener system added, if needed, to treat hardness in the well water. Additional process water treatment systems will be installed, consisting primarily of an upgrade of an existing reverse osmosis plant to provide up to 500 gallons per minute of process water for use in the boiler makeup water system and in soot blowing. The existing industrial wastewater treatment system will continue to handle wastewaters produced by the converted Plant with a new wastewater treatment plant added to treat rinse and wash waters from the existing solids settling basin. Treated wastewaters from both the wastewater treatment system and the water treatment systems will be recycled to the cooling pond to the maximum extent practicable. The existing potable water treatment system and domestic wastewater treatment system will not require any changes as a result of the conversion except to extend distribution lines and service lines, respectively, to the new buildings. By-Product Reuse and Disposal Gypsum recovered from the scrubber will be dewatered, filtered, and rinsed to produce high-quality gypsum usable as the primary ingredient in wallboard or dry wall. Pure Air of Manatee has a 20-year contract for National Gypsum to use the scrubber gypsum to produce wallboard at its Tampa production plant. Use of scrubber gypsum to manufacture wallboard has occurred for many years, including use by National Gypsum. In addition to this major off-site use of gypsum, Pure Air has contracts to supply local cement manufacturers with gypsum for use in the manufacture of Portland cement. The combined capacity of the contracts is greater than the converted Plant's annual gypsum production. Flyash will be collected in the ESPs and conveyed by pneumatic conveyor system to totally enclosed silos. The flyash will then be fed into a processing facility to make commercial by- products for shipment to off-site users. Pure Air has developed several potential commercial uses for flyash with the primary market expected to be the asphalt products industry. Pure Air is seeking to sell all of the flyash to that industry. In addition, flyash may be sold for use in Portland cement manufacturing. These environmentally sound uses of flyash would add value to the ultimate products produced. The volume of flyash to be produced at the Plant could be used entirely by three cement manufacturers within the Manatee County/Hillsborough County area. A 15-acre temporary storage area for the gypsum by- product will be constructed west of the existing Plant. The purpose of this temporary by-product storage area is to stockpile gypsum so that it can be supplied to the off-site users when the Plant is shut down for maintenance or to store it during periods when the wallboard manufacturer or cement plants may not be in operation. Normally, one to two months of gypsum will be stored in this area, which will have capacity for up to six months of gypsum production. Gypsum will be trucked to the on-site temporary by-product storage area over internal roads. It will be reclaimed as needed and transported to the various manufacturing facilities. While there are no specific agency regulations or design standards that apply to the design and operation of the temporary by-product storage area, FPL has committed that the storage area will be lined with a composite gypsum/synthetic liner designed in accordance with DEP's liner requirements for phosphogypsum management under Rule 62-673, F.A.C. The design of the storage area will comply with all of the design criteria of DEP Rule 62-673, F.A.C. Use of these design standards as a guide will insure that surface water and groundwater will be adequately protected from any impacts associated with the temporary by- product storage area. The temporary by-product storage area is outside the 100-year flood plain, is not located within 200 feet of any natural or artificial surface water body that might receive untreated surface discharges, and is not within 500 feet of an existing or approved drinking water supply. Any rainfall that contacts the stored gypsum will be collected and used as makeup water in the pollution control system and not discharged off-site. The storage area will be bermed to contain rainfall from a 100-year/24-hour storm event. Groundwater monitoring wells will be installed around the temporary by-product storage area and sampled semiannually to monitor for any possible groundwater contamination from the storage area. To insure long term operation of the converted Plant, the Project design has included a 158-acre on-site disposal area for gypsum and flyash. The long-term disposal area will only be constructed if it becomes infeasible, impracticable, or uneconomical to continue to sell the by- products or to use off- site disposal facilities. The backup by-product disposal area would be located west of the existing units and is sized to hold 100 percent of the by-products generated over a 20-year period. While no specific agency regulations or design standards apply to the backup by- product disposal area, it would be designed in accordance with the requirements of Rule 62-701, F.A.C., which establishes design standards for Class I landfills. The gypsum disposal area, designed for a full 20 years of by- product, would be approximately 100 acres with a maximum height of 115 feet above ground surface. The separate flyash disposal area would be approximately 20 acres with a maximum height of 45 feet. The other 38 acres would be used for stormwater and leachate ponds and perimeter berms and roads. The disposal areas would be divided into ten phases or cells, each holding approximately two years of ash or gypsum production from the Plant. This phasing would minimize the required construction which further minimizes environmental damage, including impacts to wetlands. A 350-foot-wide vegetated buffer would be maintained between the western edge of the disposal area and the FPL property line along the nearest outparcel. The by-product disposal area will be constructed with a double liner system to prevent impacts to groundwater. The bottom liner will be above the seasonal high groundwater table. The disposal area will have a primary leachate collection system above the upper liner and a secondary leachate collection system between the upper and lower liners. The leachate will drain to sumps in the leachate collection system and then will be pumped to two double-lined leachate ponds capable of containing a 25- year/24-hour storm event with three feet of freeboard. Any leachate collected in the ponds will be pumped for use in the pollution control equipment and not be discharged off-site. Once a disposal cell is filled, it will be closed and capped with a synthetic geomembrane and protected by about two feet of soil to prevent rainfall from leaching in and contacting the gypsum or flyash. The soil will be grassed to prevent erosion. Following closure of the disposal area, continuing maintenance and monitoring will be undertaken. Rail and Road Improvements FPL will construct new turn lanes and acceleration lanes at the intersection of the Plant entrance road and State Road 62. These roadway improvements will facilitate turning in and out of the Plant and reduce delays for through traffic on State Road 62. FPL will improve the existing rail line serving the Plant and install a new rail curve where the existing Plant spur intersects with the existing rail line north of the Plant. The existing rail line between the Plant and Palmetto will be repaired and maintained to American Railway Engineering Association Class I standards. This rail line will be used for delivery of materials during construction and maintenance of the existing units and in the future, if feasible opportunities or needs develop, to transport limestone to the site and remove gypsum and flyash from the site. Surface Water Management Systems Construction and operation of the Project will involve treatment, storage and management of surface water runoff resulting from rainfall on the Project site. A surface water management system and associated facilities, consisting of a series of swales, culverts, and treatment ponds, already exist within much of the Project site. During Project construction, the existing stormwater treatment areas will provide management of stormwater runoff and will meet the applicable regulations of SWFWMD, Manatee County and other agencies. During operation, rainfall that falls within areas that could potentially be contaminated by fuels are treated as industrial wastewater and treated in the Plant's industrial wastewater treatment system prior to discharge to the cooling pond. As part of the Project, new drainage areas with stormwater runoff that may potentially contact Orimulsion will be isolated from the existing runoff collection system and processed through a new, lined stormwater basin and a new bitumen/water separator. A new stormwater detention pond will be constructed south of the power block to capture and treat runoff from new roadways. A perimeter swale system will be constructed to serve the new railroad curve between the existing main rail line and the existing Plant spur. Rainfall within the area around the three new wells adjacent to the west bank of the cooling pond will be captured in a closed system designed to hold a 100- year/24-hour storm. At the Plant fuel terminal, the existing surface water management system will be modified to incorporate a new bitumen/water separator, in addition to the existing oil/water separator. The water will be discharged within the embankment area around the fuel storage tanks, which has the capacity to hold the rainfall from a 100-year/24-hour storm. For the 15-acre temporary gypsum storage area, a perimeter berm will contain a 100- year/24-hour rainfall within the storage area. This rainfall will be isolated from the watershed and pumped to the pollution control equipment for use as makeup water. For the 158-acre backup by- product disposal area for gypsum and flyash, rainfall that may come in contact with by-products in open cells will be pumped to a separate stormwater and leachate pond and recycled as makeup water to the pollution control equipment. Runoff from closed portions of the disposal area will be routed to new stormwater ponds, treated and pumped to the cooling pond. All of these stormwater management facilities will comply with the criteria for water quality treatment and water quantity retention prior to discharge, as established by the SWFWMD, Manatee County, the DEP and the Steam Electric Guidelines under 40 CFR Part 423. Project Construction and Schedule Construction of the Project will require approximately two years. Following permit approval, construction would commence with the relocation of existing equipment and the installation of foundations for the new pollution control equipment. During initial construction, the Plant would still be operated. For the last 90 days of construction the Plant would cease operation and FPL would undertake the boiler enhancements. This would involve installation of the new low-NOx burners and tie-in of the pollution control equipment. Pure Air will design and install the new pollution control equipment while FPL will be responsible for construction of the boiler modifications and alterations to the fuel delivery system. Construction impacts to natural areas are expected to be minor since much of the construction will be undertaken within the existing developed area of the Plant and only localized excavation, grading and levelling will be necessary. Temporary dewatering of groundwater may be necessary during construction of foundations for the pollution control equipment. Fugitive dust generated from construction traffic and excavation will be minimized by water sprinkling. Other open areas will be either paved or vegetated to reduce fugitive dust and wind erosion. Under the arrangement between FPL and Pure Air, of the total capital cost of approximately $263.54 million, approximately $83.5 million will be paid for by FPL, and $180 million, including pollution control facilities, will be paid for by Pure Air. Transportation FPL conducted traffic analyses to determine if the existing roadways in the area would operate within established levels of service based upon increased volumes of traffic associated both with construction and operation at the site. During construction, the magnitude of traffic impacts will be directly related to the number of construction employees. While peak construction employment is expected to reach 577 employees, for purposes of the traffic impact analysis it was assumed that construction employment would peak at 640 employees, representing a worst case assumption. During Plant operations, 40 new employees are expected to work at the Plant. In addition, trucks will be used to deliver limestone and remove gypsum and flyash from the site. The maximum number of trucks used for this purpose would represent 202 round trips per day, in and out of the Plant site. However, it is expected that the same trucks used to remove gypsum from the site will be used to backhaul limestone into the site. Backhauling would reduce the number of trucks for delivery of limestone and gypsum to about 60 percent of the maximum level. Existing roadways and intersections in the site vicinity are currently operating at acceptable levels of service as adopted by county and state transportation agencies. A traffic impact analysis, using conservative methodologies and assumptions, demonstrated that with the additional Project traffic, the area roadway network and intersections will continue to operate acceptably in accordance with agency standards and levels of service. All of the roadways in Manatee County and Hillsborough County that would be used for truck traffic are designated by functional classifications for truck traffic. All of these roadway segments are currently serving through traffic and truck traffic today. While Project-related traffic will comply with applicable agency standards, FPL has committed to several roadway improvements to enhance traffic-related movements in the area. FPL will construct a left-turn lane from State Road 62 into the Plant entrance, as well as a west-bound acceleration lane along State Road 62 leaving the site. These improvements will reduce delay for traffic travelling along State Road 62 past the FPL site. FPL will fund installation of a traffic signal at the intersection of State Road 62 and U.S. 301 west of the Plant site, if the Florida Department of Transportation decides that traffic signal is warranted. Project truck traffic for delivery of limestone and removal of gypsum will be limited during morning hours when school buses would be operating along the trucking haul route. In addition, FPL will install school bus stop signs and school bus shelters along the primary haul route. FPL will pay its fair share of the cost of any deterioration of area roadway surfaces caused by the Project's trucks. These improvements are beyond what would be required to comply with applicable agency standards as all of the roadway facilities are operating within agency standards. Rail delivery of limestone and removal of gypsum was considered during the original development of the Project. However, rail shipments of these products was deemed not to be feasible currently for several reasons. Investigations showed that both the gypsum that would be produced at the Plant and the limestone and limerock likely to be delivered to the Plant cannot be unloaded from conventional rail cars, based on testing of available rail car types. Several of the limestone quarries that may be used to supply limestone do not have rail access or rail facilities. Also, National Gypsum does not have rail facilities for unloading gypsum at its existing plant. Moreover, if use of rail shipments were feasible, trains hauling gypsum to the Tampa wallboard manufacturing plant would pass through 150 at-grade crossings in Manatee and Hillsborough counties and the rail route would go through downtown Tampa. Noise Impacts Noise impacts from the Project will not exceed applicable noise standards. Archaeological and Historic Sites The Project will not affect any known archaeological or historical sites. Appropriate Conditions of Certification have been proposed to protect such resources if discovered later. Air Emissions, Controls, and Impacts Existing and Proposed Emissions FPL received air construction permits for the Plant units from the Florida Department of Air and Water Pollution Control (DWPC) in 1972 and air operation permits from the Florida Department of Environmental Regulation (DER) in 1977 and 1978. FPL currently utilizes fuel quality and combustion controls to achieve existing permitted emission limits for SO2, NOx, PM, and visible emissions. The existing emission limits for SO2 and NOx are more stringent than emission limits for most power plants in Florida. Although the Plant units currently are permitted to operate at a 100 percent capacity factor (i.e., utilization rate), the units historically have operated at an average annual capacity factor of approximately 30 percent, due in large part to fuel oil costs. As a result of the conversion to Orimulsion, the Plant units are expected to operate at an annual average capacity factor of 87 percent. Despite the increase in Plant utilization, total short-term (hourly) and total annual (tons per year or "tpy") air emissions are expected to decrease in comparison to both permitted and historical levels. With installation of FGD, actual emissions of SO2 will decrease by approximately 13,000 tpy or 45 percent from historical levels. Similarly, with installation of ESPs, annual emissions of PM and toxic substances also will decrease, and visible emissions will be limited to 20 percent opacity instead of the 40 percent level authorized under existing permits. Although low-NOx burners and reburn technology will be installed on both units to achieve a reduction from the existing short-term NOx emission rate, annual emissions will increase by approximately 6,000 tpy due to increased Plant operation. Likewise, short-term emissions of carbon monoxide (CO) will decrease; but annual emissions will increase by approximately 3,500 tpy. Because the converted Plant is expected to displace other plants in FPL's generating system, it is expected that the Project also will affect air emissions on a system-wide basis. Based on an analysis of projected fuel usage and emission rates for the various units in FPL's system through the year 1999, the Project will result in system-wide reductions in air emissions of all pollutants except CO. In the first year of Project operation, for example, system-wide emissions of CO are predicted to increase by 2,607 tons; but there will be significant reductions in all other pollutants, including PM (-2,252 tons), SO2 (-48,626 tons), NOx (-10,425 tons), volatile organic compounds or "VOCs" (-109 tons), and toxics (-181 tons). The analysis made appropriate assumptions concerning other FPL permits, power purchase contracts and changes in power demand from population growth and other factors. Best Available Control Technology for NOx DEP has determined that conversion of the Plant units to fire Orimulsion constitutes a "modification" subject to review under DEP's Prevention of Significant Deterioration (PSD) regulations in Chapter 62-212, F.A.C. For modifications of existing sources, these regulations require a determination of Best Available Control Technology (BACT) for all air pollutants which will experience emission increases in excess of applicable significant emission rates. Rule 62-212.400(1)(f), F.A.C. Because NOx and CO emission increases exceed applicable significant emission rates as a result of the conversion to Orimulsion, BACT is required for those pollutants. DEP rules define "Best Available Control Technology" or "BACT" as: An emissions limitation, including a visible emission standard, based on the maximum degree of reduction of each pollutant emitted which the Department, on a case by case basis, taking into account energy, environmental, and economic impacts, and other costs, deter- mines is achievable through application of pro- duction processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant. Rule 62-212.200(16), F.A.C. In determining BACT, DEP must give consideration to prior BACT determinations of the U.S. Environmental Protection Agency (EPA) and any other state, all available scientific and technical material and information, and the social and economic impacts of application of such technology. Rule 62-212.410(1), F.A.C. DEP has no rule on making BACT determinations. In making BACT determinations, DEP attempts to follow EPA guidelines. Unfortunately, EPA also has not promulgated the guidelines as rules; they consist of a 1990 draft entitled EPA New Source Review Manual. To make matters worse, one reason why the EPA draft guidelines have not been adopted as rules may be that they are so complicated and confusing. It was noted by one expert practitioner in the field that it is with good reason that the design of the cover of the EPA draft guidelines is a jigsaw puzzle and, notwithstanding their official title, practitioners commonly refer to the guidelines as "the puzzle book." In accordance with EPA requirements, DEP currently uses a "top down" approach in determining BACT. Under the "top down" approach, alternative control technologies are ranked in terms of stringency. An emission limit reflecting the most stringent control alternative generally is selected as BACT unless rejected as technically or economically infeasible. Under the "top down" BACT approach, the most stringent NOx emission limit for sources similar to the Plant units is 0.17 lbs/mmBtu (pounds per million British thermal units) of heat input, using selective catalytic reduction (SCR) and combustion controls. SCR involves the injection of ammonia into the flue gas in the presence of a catalyst. The ammonia reacts with NOx on the surface of the catalyst, thereby transforming NOx into nitrogen and water. The SCR is not entirely selective; it also results in undesired reactions, including the conversion of SO2 to SO3 and the creation of ammonium sulfate and bisulfate. SCR systems require a flue gas temperature in the range of 600 to 750 degrees (F) which for some applications can be achieved between the boiler and the air preheater upstream of the ESP and FGD system. This configuration is referred to as a "front-end" SCR system. With fuels such as Orimulsion and high sulfur fuel oil which contain relatively high amounts of sulfur and vanadium, however, a front-end SCR can lead to significant problems because the vanadium in the fuel deposits on the SCR catalyst and results in an ever-increasing SO2 to SO3 conversion rate. Despite an extensive research program conducted jointly by European and American corporations involved in SCR manufacture, design, and operation, there are no available means of avoiding the ever-increasing SO2 to SO3 conversion rate when a front-end SCR is used with high-sulfur and high-vanadium fuels on utility units operated at base-load (i.e., operated continuously). Excessive SO3 created by a front-end SCR can plug the air preheater, which is a large piece of equipment approximately 45 feet in diameter. In addition, the SO3 condenses into sulfuric acid which corrodes the air preheater and ESP. There are no available means of protecting the air preheater from the excessive SO3 created by a front-end SCR system. Additional ammonia can be injected after the air preheater to neutralize the increased SO3 and thereby protect the ESP. However, additional ammonia injection causes more operational problems including ammonia slip, which can contaminate the water in the FGD and partially leave the stack as an emission, as well as an additional ash stream which would result in either higher particulate emissions or the need for a larger ESP. For these reasons, a front-end SCR system is technically infeasible for the converted Plant units, which are expected to operate base-loaded while firing Orimulsion. There was some testimony that a front-end SCR has been used on a unit which apparently has fired Orimulsion in Japan for approximately one year. However, that was a small peaking unit that could be shut down for maintenance when needed. In contrast, FPL's plans for the converted Manatee Plant units is to operate them as base-loaded units. Unlike peaking units which operate sporadically, base-loaded units operate continuously and are not out of service enough to allow for the performance of the additional maintenance required for a front-end SCR system. For that reason, a front-end SCR is not technically feasible for base-loaded units firing Orimulsion. Under a "back-end" design in which the SCR system is located downstream of the air preheater, ESP and FGD, the operational problems associated with the front-end system are avoided because the ESP removes vanadium, and the FGD removes sulfur from the flue gas. However, there are significant energy, environmental, and economic disadvantages to a back-end system. A back-end system would require installation of additional fans to overcome significant pressure loss and either duct burners or steam heat exchangers to reheat the flue gas to achieve the temperature necessary for the catalytic reaction. Approximately 6.72 percent of the energy generated by the boilers would have to be used to power this additional equipment--the approximate equivalent of the electrical use of 30,000 homes. In addition to higher energy consumption, a back-end system would result in secondary emissions from the burning of additional fuel and increased capital and operating costs. The EPA guidelines seem to say that both average and incremental cost effectiveness should be used to evaluate particular control options. Average cost compares the total amount of pollutant reduction from a combination of technologies to the cost of those technologies. Incremental cost effectiveness assesses the cost of adding a technology to emissions already controlled to some extent by other technologies. Of the two analyses, DEP believes that incremental cost effectiveness is the better accepted engineering practice, and there is a larger incremental cost database that can be used for making project-to-project comparisons. For these reasons, DEP relies more on the incremental cost effectiveness analysis. In prior BACT determinations for NOx emissions, DEP has viewed incremental costs in the range of $4,000 per ton of NOx removed as economically viable. By comparison, DEP has considered incremental costs in the range of $5,000 per ton of NOx removed to be unacceptable in determining BACT for NOx. The total capital costs of a back-end SCR system are on the order of $80 million to $100 million per unit. When capital costs are considered with operational costs and annualized over time, the total per-unit cost of a back-end SCR system ranges from $27 to 29 million per year. Unlike SCR, which reduces NOx that has already formed in the boiler, low-NOx burners minimize the formation of NOx by reducing the temperature and amount of time that nitrogen and oxygen have to react in the boiler. For the converted Plant units, low-NOx burners are capable of achieving a NOx emission rate of 0.27 lbs/mmBtu or lower at a total capital cost of approximately $5 million per unit. Operating costs are low, and the incremental cost effectiveness of low NOx burners used to achieve a .27 lbs/mmBtu emissions rate is only about $670 per ton removed. When compared to use of low-NOx burners at a 0.27 lbs/mmBtu NOx emissions rate, the incremental cost of adding a back-end SCR to achieve a 0.17 lbs/mmBtu rate is in the range of $8,000 to $9,000 per ton of NOx removed, which is well in excess of costs previously found to be too high in prior BACT determinations. Shortly before the start of the final hearing, FPL agreed to add reburn, another combustion control technology, on one unit as a test to ascertain if it could further reduce NOx emissions during the generating process; if so, FPL agreed to add the technology to the other unit as well. However, FPL still maintained that the BACT emissions limit should be set at .27 lbs/mmBtu. By the end of the hearing, a stipulation was entered into among FPL, DEP, EPC and Pinellas County that reburn technology also will be installed on both units to achieve a NOx emissions limit of no greater than 0.23 lbs/mmBtu (30-day rolling average) while firing Orimulsion. In addition, it was stipulated by those parties that DEP may modify the NOx emissions limit if it is determined that a rate lower than 0.23 lbs/mmBtu can be practicably and consistently achieved based upon the results of a six-month test program to be developed by a NOx Emissions Reduction Team consisting of representatives from FPL, the low- NOx burner supplier, FPL's reburn technology consultant, DEP, Pinellas County, Manatee County and EPC. The evidence was somewhat confusing as to the capital and operating costs of the reburn technology. It appears that the capital cost would be approximately an additional $8 million per unit, making the total capital cost of the combination of low NOx burners and the reburn technology approximately $13 million per unit. The evidence did not specify the operating costs. However, the evidence was that incremental evaluation of the addition of back-end SCR using the lower .23 lbs/mmBtu emissions limit would result in SCR being even less cost-effective--more on the order of $15,000 per ton of NOx removed. There is some indication that, while BACT emission limits for SCR systems have been set at .17 lbs/mmBtu, the technology actually might be capable of achieving emission reductions on the order of .10 lbs/mmBtu. If the lower emissions rate is assumed, SCR would look more cost effective. However, no calculations were made based on the lower emissions rate, and there was no competent evidence on which a finding could be made that, for purposes of determining BACT, the cost-effectiveness of back-end SCR should be assessed based on the lower emissions limit. The evidence was that the .10 lbs/mmBtu was a design emissions rate for certain SCR equipment; the evidence called into question the ability of SCR to achieve a continuous emission rate of .10 lbs/mmBtu. Although DEP has declined to give much weight to consideration of the average cost of NOx removal, some evidence was introduced at hearing on the average cost of reducing NOx emissions at the converted Manatee Plant using a combination of low NOx burners and back-end SCR. Under an average cost effectiveness analysis, the emissions limit determined to be achievable by a combination of control technologies is compared to what EPA calls the "realistic upper bound" uncontrolled emissions rate. Using an "upper bound" emissions rate of .58 lbs/mmBtu, and an emissions limit of .17 lbs/mmBtu, one witness found the average cost of reducing NOx emissions at the converted Manatee Plant using a combination of low NOx burners and back-end SCR to be on the order of just $2,000 per ton removed. But the use of .58 lbs/mmBtu as the "upper bound" number was based on incomplete and to some extent inaccurate information. FPL and DEP presented evidence that the actual average cost per ton of NOx removed is more on the order of $4,300. These analyses used .395 (or .4) lbs/mmBtu as the "upper bound" starting point. This starting point was based on more complete and more accurate information, but there seems to be room for argument as to the most suitable starting point. There also was evidence of an earlier FPL calculation that average cost per ton of NOx removed is approximately $2,900. However, the evidence was not clear as to the assumptions used in this calculation. Although DEP has declined to give much weight to consideration of the average cost of NOx removal, there was some indication that other states do. Pennsylvania was said to use average cost of $4,000 per ton of NOx removed as a benchmark for determining the economic feasibility of BACT emissions limits, and Wisconsin was said to use $6,000. However, the evidence was not clear as to how those states make BACT determinations for NOx emissions. In light of the excessive incremental costs of SCR for the converted Plant units, imposition of SCR is not warranted. Although concerns have been raised about the potential effect of NOx emissions on ozone levels and nitrogen deposition in the Tampa Bay area, as discussed infra, NOx emissions from the converted Plant units are not expected to have a significant impact on either ozone levels or water quality. Moreover, the evidence was not clear that such environmental impacts would be significantly different whether or not SCR is installed on the converted Plant units. Based upon a case-by-case consideration of the energy, environmental, economic, and other factors discussed above, a NOx emission rate of 0.23 lbs/mmBtu based upon use of low-NOx burners and reburn technology constitutes BACT for the converted Plant units when firing Orimulsion. For CO emissions from the converted Plant units, BACT is an emissions limit of 0.325 lbs/mmBtu based upon use of combustion controls. Other than combustion controls, there are no feasible means of controlling CO emissions from fossil fuel- fired steam electric generating units. Air Quality Impact Analysis Ambient air quality impact analyses demonstrate that emissions resulting from maximum operation of the converted Plant will comply with applicable ambient air quality standards and PSD increments for CO and NO2. Because the NO2 analyses were based upon a NOx emissions rate of 0.3 lbs/mmBtu, actual impacts on ambient NO2 concentrations are expected to be lower in light of the subsequently agreed-upon NOx emissions rate of 0.23 lbs/mmBtu. Although ambient impact analyses are not required for SO2 and PM because emissions will be below significant emission rates, FPL also performed air dispersion modeling demonstrating compliance with ambient air quality standards for those pollutants. Additional impact analyses demonstrate that projected emissions of SO2, NOx, and CO will have no adverse impact on soils, vegetation, wildlife, or visibility in the vicinity of the Plant. Likewise, the results of air dispersion modeling demonstrate that projected emissions will not adversely impact air quality related values (AQRVs), such as vegetation, soils, wildlife, and visibility, in the Chassahowitzka National Wilderness Area which is the PSD Class I area closest to the Plant. Effect of Proposed NOx Emissions on Ozone Levels Ambient air quality analyses for ozone typically are not required for sources, such as the Plant, which are located in areas that are in attainment of the ozone standard. However, because the Plant is located within a mile of the Hillsborough County/Manatee County line, and not far from Pinellas County, and because Hillsborough County and Pinellas County are in the process of being redesignated from nonattainment to attainment for ozone, concerns have been raised regarding the potential effect of proposed NOx emissions on ozone levels. Ozone formation is a complex process involving precursor pollutants such as NOx and VOCs (volatile organic compounds). There is no direct relationship between increased NOx or VOC emissions and increased ozone levels. Depending upon conditions in the particular area in question, NOx reductions may or may not benefit ambient ozone levels. The impact of a NOx emissions point source, such as the Manatee Plant, on ozone levels is difficult to predict. There are no EPA-recommended models to analyze the effect of NOx emissions from a particular source on ozone concentrations, but other models and tools that are available can be used to try to assess whether a particular source may have a significant impact on ozone formation in a particular urban area. FPL used the models suggested by DEP. To assess the impact of projected NOx emissions on ozone formation, FPL first utilized the Empirical Kinetics Modeling Approach (EKMA), which DEP used in support of the ozone redesignation request submitted to EPA for the Tampa Bay area. The EKMA model is not a dispersion model designed for use in predicting ozone impact of a NOx emissions point source, such as the Manatee Plant. It essentially evenly distributes NOx and VOC's within a certain volume of air, such as the air over the Hillsborough/Pinellas nonattainment zone, and models the totality of what occurs within the airshed. It also does not account for either other additions from outside the zone being modeled or components of the air mass leaving the zone being modeled. FPL essentially adjusted the model by adding the NOx emissions from the converted Manatee Plant. It is a relatively crude model used primarily for screening purposes. Because of the difficulty in predicting the impact of the converted Manatee Plant, and the limitations of the EKMA model, DEP requested that FPL also use the Reactive Plume Model (RPM) to further assess the effect of the projected emissions on ozone concentrations in Hillsborough and Pinellas counties. The RPM model also has its limitations and is not approved by the EPA for predicting ozone concentrations resulting from a point source. The RPM models ozone precursor reactions resulting from the point source being studied that occur within the plume. It is clear that, as a result of the complex nature of the ozone precursor reactions, significant ozone formation also will occur "off-plume." RPM attempts to account for this ozone formation as well. In any event, it is not clear how "off-plume" reactions would be affected by the point source being evaluated. Like the EKMA model, the RPM model used by FPL also did not account for either additions from outside the zone being modeled or components of the air mass leaving the zone being modeled. FPL did not attempt to predict future additional sources of ozone precursors and run either the EKMA model or the RPM model assuming impacts from those additional sources. The evidence was that this exercise would have been difficult if not impossible to undertake. It is not clear whether, with new air pollution regulations, NOx levels will increase or decrease, and it is difficult to predict where new source will originate. (The same probably could be said for VOC's.) For these reasons, such an exercise, if undertaken, would have been of questionable predictive value. Despite its limitations, the RPM model does provide additional useful information in attempting to assess the impact of the converted Manatee Plant on ozone formation, and it is the only other reasonably available tool. Better models or "observation-based approaches" that might be effective for purposes of point source permitting have not been developed yet. An Urban Air Shed Model (UASM) would provide useful additional information, but UASM's are extremely complex and typically are conducted by a consortium of governments and universities for entire metropolitan areas. UASM's take years to complete and cost hundreds of thousands of dollars. It is not reasonable to require FPL to finance and conduct such a study in this case. Although there are limitations to the EKMA and RPM models, FPL has done more to analyze potential impacts of NOx emissions, using the reasonably available tools, than any other applicant in the history of Florida's air permitting program. The EKMA and RPM modeling indicate that NOx emissions from the converted Plant will not have a significant impact on ozone levels in the Tampa Bay area. Based on these modeling analyses, FPL has provided reasonable assurances that the Project will not cause or contribute to a violation of the ozone standard. By notice published in the Federal Register on December 7, 1995, EPA proposed to redesignate the Hillsborough/Pinellas county area as attainment for ozone. Under the proposal, EPA would approve the redesignation request and maintenance plan jointly submitted by DEP, Pinellas County, and Hillsborough County. The Orimulsion Conversion Project itself will not trigger any specific action under the maintenance plan because the Manatee Plant is located outside of Hillsborough and Pinellas counties. There are two "triggers" for a response under the maintenance plan. The first would be a violation of the ozone ambient air quality standards in the two-county area, i.e., the fourth maximum daily value greater than .12 parts per million (ppm). The only recorded exceedances since 1990 occurred on June 10, 1995. The second "trigger" has two conditions: the first is an increase in the inventory of NOx or VOC emissions in the inventory update years 1994, 1997 or 2000 exceeding 5 percent over the levels recorded in 1990, a year in which there were no ozone violations; the second would be the a design value for the update year of greater than .114 ppm (compared to the ambient air standard of .12 ppm). While the 1994 inventory of NOx emissions was between 7 and 8 percent over the 1990 inventory, no maximum concentrations over the "design value" have been recorded. (The 1995 inventory was not available at the time of the hearing.) Recognizing the limitations of the EKMA and RPM modeling, it nonetheless is not expected that emissions from the Project will trigger any action under the maintenance plan. If an ozone violation or other specific contingencies occur in the future, however, the maintenance plan would require the state to undertake rulemaking to implement corrective action. Such corrective action could include imposition of Reasonably Available Control Technology (RACT) for existing sources of NOx in the region and expansion of NOx and/or VOC control strategies to adjacent counties. FPL also has agreed to further minimize NOx emissions during the "ozone season," which generally lasts from May 15 through September 15. Under the stipulation between FPL, DEP, EPC and Pinellas County, daily NOx emissions from the Plant shall not exceed 42.23 tons during the ozone season when Orimulsion is fired. This daily cap is more restrictive than a 30-day rolling average. As incentive to further reduce NOx emissions, FPL will pay annually, to a trust fund jointly administered by Manatee, Pinellas, and Hillsborough Counties to benefit air quality in the region, $200 per ton of NOx emitted from both Plant units, on a daily basis, in excess of 38.6 tons per day during the ozone season. Effect of Proposed NOx Emissions on Water Quality The Plant is located within the watershed of Tampa Bay, a large estuary comprised of four major segments including Old Tampa Bay, Hillsborough Bay, Middle Tampa Bay, and Lower Tampa Bay, and other embayments including Cockroach Bay and Little Cockroach Bay in the Cockroach Bay Aquatic Preserve, which is designated as an Outstanding Florida Water (OFW). The Little Manatee River, another OFW, also is part of the Tampa Bay watershed. Because Tampa Bay is located in a phosphate-rich area, phosphorus levels in the bay are extremely high. Due to high phosphorus levels, nitrogen is considered the limiting nutrient in Tampa Bay. Major sources of nitrogen to Tampa Bay include nonpoint runoff (i.e., materials that run off the land surface and are carried through riverine systems into the bay), atmospheric deposition both on the surface of the bay and within the watershed, point sources (e.g., discharges from wastewater treatment systems and industrial facilities), and internal sources within the bay itself. Although there are ongoing studies, including the Tampa Bay Atmospheric Deposition Study, to better quantify actual deposition in the Tampa Bay area, available analyses indicate that atmospheric deposition is an important source of nitrogen loading to Tampa Bay. The water quality of Tampa Bay varies from "good" in Lower Tampa Bay to "fair" in portions of Hillsborough Bay which historically have had water quality problems such as high levels of chlorophyll a. The water quality of Cockroach Bay reflects the water quality in adjacent Middle Tampa Bay, which has been characterized as "poor" during certain times of the year due to relatively high chlorophyll a levels. Due to nutrient inputs and other factors such as dredge and fill activities, prop-scarring from motor boats, and other physical activities, portions of Tampa Bay, including Cockroach Bay, have experienced significant losses in historical seagrass coverage. In recent years, however, seagrass coverage has increased in Tampa Bay overall. Lake Manatee is another water body of potential concern located near the Plant within the Tampa Bay watershed. Lake Manatee is a man-made lake which supplies drinking water to Manatee County, Sarasota County, and various municipalities. Based upon its trophic state index of 50 to 60 for the past few years, Lake Manatee has water quality in the upper end of the "good" range. However, Manatee County treats Lake Manatee with copper sulfate to prevent blooms of blue-green algae which can create taste and odor problems in the water. Studies have determined that nitrogen is the limiting nutrient of Lake Manatee and that nitrogen levels have increased. Due to high color levels and other factors, however, Lake Manatee appears to be a dystrophic system in which primary nutrients, such as phosphorus and nitrogen, are not responsible for most of the plant growth. In fact, the most recent study of Lake Manatee water quality indicates that algal growth there has a stronger correlation to temperature and specific conductance than to total nitrogen. In addition, the blue-green algae associated with taste and odor problems in lake water have the ability to "fix" nitrogen from the atmosphere and, therefore, have a competitive advantage over other algae in the absence of external nitrogen inputs. To assess potential impacts of the Project on water quality in the Tampa Bay area, the effect of proposed NOx emissions on nitrogen deposition in the Tampa Bay watershed was calculated using the best tools reasonably available. Assuming a NOx emissions rate of 0.23 lbs/mmBtu following the conversion to Orimulsion as proposed with the stipulated conditions of certification, the Plant's contribution will be 1.25 percent of the total nitrogen deposition in the watershed. Based upon consideration of background deposition in more pristine locations in Florida and local deposition within the Tampa Bay area, as well as a comparison of current and projected emissions from the Plant with regional NOx emissions, NOx emissions from the converted Plant will result in a less than 0.8 percent increase in nitrogen deposition throughout the Tampa Bay watershed. Additionally, the estimated increase in nitrogen deposition was apportioned among the various segments of the watershed based upon the results of dispersion modeling. Atmospheric nitrogen can reach Tampa Bay and other water bodies through direct deposition on the water surface as well as "indirect deposition" and subsequent runoff from land surfaces within the various segments of the watershed. Due to soil absorption and plant uptake, however, not all atmospheric nitrogen deposited within the watershed ultimately reaches Tampa Bay. Using the Project's calculated impact on nitrogen deposition and conservative runoff coefficients for the "indirect deposition" component, nitrogen loading budgets were calculated for Tampa Bay and its various segments, as well as Lake Manatee. Existing nitrogen loadings are on the order of 3,000 metric tpy for Tampa Bay and 300 metric tpy for Lake Manatee. In comparison, the increase in nitrogen loadings attributable to the Project is on the order of 21 metric tpy (or 0.69 percent) for Tampa Bay and 1.2 metric tpy (or 0.39 percent) for Lake Manatee. In light of the existing loading to these systems, the predicted increases attributable to the Project are insignificant. Because these loading analyses are based upon a NOx emissions rate of 0.27 lbs/mmBtu, actual impacts on nitrogen loading are expected to be less in light of the lower 0.23 lbs/mmBtu emissions rate subsequently agreed upon in the stipulation between FPL, DEP, Pinellas County and EPC. Although nitrogen within the water column will deposit in the sediments, increased nitrogen loadings will not have an extended cumulative effect over time because the amount of nitrogen available to the system ultimately reaches equilibrium as a result of a continual burial process. Additionally, other processes, such as denitrification, decrease the amount of nitrogen in the sediments. Accordingly, marginal increases in atmospheric deposition of nitrogen have only marginal effects on sedimentary nitrogen concentrations and internal loadings. To assess the Project's impact on biological activity in surface waters in the vicinity of the Plant, laboratory tests were performed on water samples collected within the Lower Tampa Bay, Lake Manatee, Cockroach Bay, the Little Manatee River, the Manatee River, and Lake Manatee utilizing the algal assay procedure (AAP). AAP is a procedure developed and recommended by EPA to determine the effect of increased nitrogen loadings on algal growth within receiving marine or freshwater systems. Under the AAP, water samples taken from the field are spiked with varying levels of nitrogen as well as algae with a given growth potential. After the spiked samples are set aside for five to seven days, algal growth is measured and comparisons between the spiked and control samples are made to determine the effect of the nitrogen additions. In each of the AAPs performed, no statistically significant increase in algal growth was noted with nitrogen additions up to 10 times the amount anticipated from the Project. FPL provided reasonable assurances that nitrogen loadings attributable to the converted Plant will not have a significant adverse impact on water quality or biological activity in any marine, estuarine, or aquatic systems in the Tampa Bay area. The evidence indicates that the impact is likely to be so small that it will be difficult to measure and distinguish from natural fluctuation in nitrogen levels. For the same reason, FPL has provided reasonable assurances that, when considered in conjunction with nitrogen loadings of the same order from other NOx emission sources which have been permitted but have not begun operation in the Tampa Bay area, the Project will not cause or contribute to an imbalance in natural populations of aquatic flora and fauna or a dominance of nuisance species in Tampa Bay, including Cockroach Bay. Likewise, because nitrogen loadings from the Plant are not expected to have a significant adverse impact on algal growth, such loadings are not expected to impact other flora, other trophic levels, such as seagrasses or fisheries production, or transparency levels in Tampa Bay. In their case, Manasota-88 and MCSOBA presented two expert witnesses who generally opined that 20 tons of additional nitrogen would be detrimental to Tampa Bay, would cause an imbalance of aquatic flora and fauna in violation of DEP's nutrient rule, as well as violations of DEP's transparency and nuisance rules, and that nitrogen loading to Tampa Bay has the potential to be a cumulative problem. The expert witnesses presented by Manasota-88 and MCSOBA did not perform or make reference to any studies or other analyses that contradict the analyses performed by FPL's expert witnesses related to nitrogen deposition impacts. Theirs was more of a qualitative evaluation. Clearly, seagrass coverage in Tampa Bay and Cockroach Bay has declined due in large part to shading from algal growth resulting from nitrogen. It follows logically, in their opinion, that adding 21 tons of nitrogen a year to current and future levels cannot help, but can only hurt, even if the impact is too small to measure. They urge that DEP should prohibit any increases in nitrogen loading to Tampa Bay, in accordance with the recommendations resulting from the federally-funded National Estuaries Program (NEP) study of Tampa Bay, including any increases from atmospheric deposition. Regulatory links between air emissions and water quality criteria are developing through the policy of management. But DEP historically has not regulated atmospheric deposition of nitrogen to surface waters, and ecosystem management has not yet matured to the point where DEP is ready to begin regulating atmospheric deposition of nitrogen as a surface water discharge subject to surface water quality permit review. If it does, it is possible that some recommendations of the NEP Tampa Bay study on nitrogen loading to Tampa Bay could be achieved through new surface water quality permit review of nitrogen loading through atmospheric deposition. Such regulation may result higher power generating costs from stricter NOx emissions limits, but it may be determined that those costs would be lower than the costs of trying to rehabilitate water bodies after nitrogen has been deposited and loaded into them. In the absence of such regulation, however, FPL nonetheless has provided reasonable assurances that nitrogen deposition resulting from NOx emissions from the converted Plant will not have any meaningful or measurable impact on water quality, biological activity, or transparency in any marine, estuarine, or aquatic system in the Tampa Bay area. Human Health Risks Associated with Proposed Air Emissions Despite increased plant utilization, there will be no increase in either short term or annual emissions of any hazardous air pollutants (HAPs) or other "air toxics" as a result of the conversion to Orimulsion. To assess potential health- related impacts of Project emissions, air dispersion modeling was conducted to predict ambient concentrations of HAPs and other air toxics. The predicted ambient concentrations for all HAPs and air toxics except vanadium are below ambient reference concentrations (ARCs), which are conservative screening values established for various air toxics in DEP guidelines. Predicted concentrations of vanadium exceed the ARC for the 24-hour averaging period at the maximum point of impact within the plant site, but the exceedance is very small (i.e., at the third decimal place), and the ARC is between 100 and 1000 times lower than any exposure level shown to cause effects in humans. Moreover, vanadium is not bioaccumulative and does not have any interactive effect with other substances. Accordingly, the proposed level of vanadium emissions does not pose a significant threat to human health. Although there is no regulatory requirement for a formal risk assessment, a multi-pathway risk assessment was performed to evaluate potential human health impacts of air emissions from the converted Plant. Whereas the ARCs established by DEP address only the inhalation pathway of exposure, the multi-pathway risk assessment considered the cumulative effect of oral and dermal exposure in addition to inhalation exposure to all pollutants emitted from the converted Plant. Utilizing conservative assumptions, the multi- pathway risk assessment analyzed potential exposures to residential and occupational populations, including potentially sensitive populations such as children and persons who live and work near the Plant. Based upon the results of the multi-pathway risk assessment and other analyses, the health risks from operation of the Plant while firing either oil or Orimulsion are negligible. Compared to historical operation with No. 6 fuel oil, future operations following conversion to Orimulsion would provide a benefit from a toxicological and risk assessment standpoint. Plant Water Supply and Use Water Supply FPL is currently withdrawing water from the Little Manatee River under a valid Permit Agreement entered with the SWFWMD in 1973 and amended in 1975. As part of the Project, FPL will significantly reduce the amount of water it is allowed to withdraw from the Little Manatee River. Maximum allowed withdrawals for the 16-year period 1978-1993 could have been up to an average of 28.4 million gallons per day (MGD) under the Permit Agreement. By way of comparison, if the stipulated Conditions of Certification had been in effect during the same 16-year period, withdrawals would have been approximately 9.4 MGD (average) if FPL had used the full 10 percent maximum allowable withdrawals. Following the conversion to Orimulsion, the Plant will have similar requirements for cooling and process water but at increased quantities over historical levels of use. The existing Permit Agreement between FPL and the SWFWMD would allow FPL to obtain sufficient water for all its Project needs under its currently authorized withdrawals from the Little Manatee River. Rather than obtaining all the needed water from the Little Manatee River, however, the additional 9.5 MGD of water needed for the Project above historical levels will be supplied through the use of 5 million gallons per day of reclaimed water from local wastewater treatment facilities, or equivalent sources of water, and 4.36 MGD of groundwater from existing permitted sources. The order of priority for meeting the Plant's water needs following conversion to Orimulsion will be: (1) 5 MGD of reclaimed treated wastewater delivered to the cooling pond; (2) existing permitted groundwater withdrawals of 4.36 MGD for use in either the cooling pond or directly in the plant's process water systems; and (3) the use of withdrawals from the Little Manatee River, up to 10 percent of the daily flow, to meet the remaining water needs of the plant. Predicted diversions from the Little Manatee River would average approximately 8.3 MGD. This is approximately the same as historical diversions from the River since 1974 (including the "big gulp" to fill the cooling pond initially), compared to the approximately 6.4 MGD withdrawn during the 16-year period 1978-1993. The stipulated Conditions of Certification provide for reclaimed water to be used following conversion to Orimulsion will be treated wastewater supplied by the Manatee Agricultural Reuse Supply (MARS) system or other reclaimed water source. (At the time of the final hearing, negotiation of the terms of FPL's use of MARS reuse water had not yet been completed.) FPL will be able to take this treated wastewater during periods of time when farmers will not need such water for agricultural uses. Thus, deliveries to FPL could range between 2 MGD and 14 MGD. FPL's use of reclaimed water from MARS would allow the County to expand that program by providing a baseload amount of water to be taken by FPL from that system. This would allow Manatee County to avoid having to build other storage facilities for treated wastewater. FPL will install three new groundwater wells west of the cooling pond to obtain 4.36 million gallons per day of groundwater from the Floridan aquifer for use in the Plant following conversion to Orimulsion. These new wells will be constructed to meet current SWFWMD well construction standards and replace older wells that do not meet current standards. The new wells would lessen the existing impacts on the upper aquifers by preventing the exchange of contaminants between the aquifers. This quantity of water represents amounts already permitted for use both at the Plant site for plant use and on-site agricultural operations and at adjacent agricultural operations. An additional 2.7 MGD of reclaimed water will be supplied to the adjacent agricultural operations to replace the existing, permitted, off-site groundwater withdrawals that are being transferred to FPL's use. Withdrawals from the Little Manatee River will be made using the computerized withdrawal system operated by FPL under a diversion schedule that allows increased withdrawals as river flow increases. This system is controlled by using river stage height as an indicator of river flow rate. This system allows FPL to respond quickly to changes in river elevation when making withdrawals. This system will be reprogrammed to the new diversion curves to prevent withdrawals above 10 percent of the river flow on a daily basis. Withdrawals from the Little Manatee River under the proposed Conditions of Certification would not occur when the flow in the Little Manatee River is below 40 cubic feet per second (cfs). Forty (40) cfs is the minimum flow level established by the SWFWMD to protect the ecology of the Little Manatee River. The pumps can withdraw no more than 190 cfs. If the water level in the cooling pond falls below 62 feet above mean sea level (msl), FPL is authorized by the proposed Conditions of Certification to request approval from SWFWMD to increase withdrawals above 10 percent of stream flow from the Little Manatee River to restore the pond water level to 63 feet above msl. Such withdrawals would be made in accordance with three "emergency diversion curves" that limit withdrawals from the River on a seasonal basis with higher withdrawals during the wet season. The three sources of water to be used by the Plant following conversion to Orimulsion represent the lowest overall quality of water suitable for operation of the Plant. Withdrawals of groundwater and surface water from the Little Manatee River are regulated by Chapter 373, F.S., and Chapter 40D-2, F.A.C. The proposed withdrawals do not interfere with existing legal users, are reasonable-beneficial uses, are in the public interest, and otherwise comply with all applicable requirements of those chapters. Cooling Pond FPL performed analyses of the cooling pond's thermal performance and predictions of future water quality in the cooling pond, following conversion to Orimulsion and increased utilization of the Plant. A computer-based energy balance model demonstrated that the pond would operate within the desired temperature limits, and maximum water levels. Water quality in the cooling pond following 20 years of operation was also predicted using several computer models. Water quality concentrations after 20 years were predicted with a mass balance model simulating various water inflows to the pond and evaporation rates from the pond. These results were then evaluated using a metal speciation model called MINTEQ which predicted precipitation of various chemical constituents and predicted final water quality in the pond. These results were used to evaluate impacts to groundwaters. Currently, the Plant site has three existing, permitted surface water discharges to the Little Manatee River: cooling pond discharges resulting from excessive rain events; discharges which occur during spillway gate tests performed as part of FPL's cooling pond embankment safety program; and (3) overflows which may occur during loss of power or malfunction in the sump pumps in the toe drain system of the pond. Following conversion to Orimulsion, several of these permitted discharges to the Little Manatee River will be eliminated. First, the cooling pond will be operated to contain significant rain events up to a 100-year/24-hour storm event. To accomplish this, the cooling pond level will be maintained at a lower elevation below the spillway crest to allow sufficient freeboard to hold such a storm. While FPL will continue to conduct annual spillway gate tests as part of its safety program for the cooling pond, the gate tests will be conducted in a manner to insure that there will be no discharges to the Little Manatee River. New power sources will be provided to the sump pumps in the toe drain system to increase the reliability of power and to minimize overflows from those sumps. Impacts of Groundwater Withdrawals and Discharges The Project may result in impacts to groundwater resources as a result of discharges from the cooling pond and from groundwater withdrawals. FPL evaluated the potential impacts of these activities on groundwater levels and quality. To serve the Project, FPL proposes to install three new groundwater wells to replace existing permitted wells that serve adjacent agricultural operations. The 4.36 MGD of authorized withdrawals from the existing agricultural wells will be reallocated to the new FPL wells, and the agricultural water use will be met using treated wastewater. FPL conducted modeling of the withdrawals from the three proposed wells to identify the drawdown of groundwater levels in the area. FPL utilized a computer model known as MODFLO to evaluate withdrawals for a period of 20 years. Water levels in the three aquifers underlying the Plant site and in nearby existing wells will not be significantly impacted by the relocation of the withdrawals, effects on surface water bodies such as wetlands that are in and connected to the surficial aquifer will be insignificant, and the proposed pumping will not cause a drawdown of more than one foot below any wetland at or near the Plant site. Although it is not clear exactly how much of permitted capacity is being withdrawn from the existing wells that would be replaced by the three new wells proposed by FPL, FPL gave reasonable assurances that the net impact of the three replacement wells will be negligible and will not cause movement of the saltwater interface in the area around the Project. Groundwater at the site is classified as G-II groundwater. Based on the water quality modeling of the cooling pond, six constituents present in the cooling pond and in the seepage from the pond in the surficial aquifer would be above FDEP's groundwater standards. Only one of these constituents - sodium - would exceed primary drinking water standards; the other five constituents are all secondary standards. The cooling pond is an "existing installation" for purposes of groundwater discharges under Rule 62-522.200, F.A.C., because FPL had a completed application for a discharge permit on file with DEP as of January 1, 1983, and because the cooling pond was reasonably expected to release contaminants into the groundwater on or before July 1, 1982. Groundwater discharges from the cooling pond and other existing installations must meet primary drinking water standards at the boundary of the zone of discharge (ZOD) and are exempt from meeting secondary groundwater standards. (Rule 62-520.520, F.A.C.) Under Rule 62-520.200(23), F.A.C., ZODs are allowed to provide an "opportunity for the treatment, mixture or dispersion of wastes into groundwaters" both vertically and horizontally under the installation. Under the stipulated Conditions of Certification, the existing cooling pond will have a ZOD "horizontally to FPL's property line, and vertically to the bottom of an aquifer within the Arcadia Formation, the top of which aquifer is not higher than 50 feet below the surficial aquifer, and not lower than the top of the Tampa Member of the Hawthorne Group as defined in [Florida Geological Series] Bulletin No. 59" (which is a point vertically within the confining unit underlying the surficial aquifer and above the intermediate aquifer). The final compliance point for the vertical depth of the ZOD will be determined during the DEP's review of the groundwater monitoring plan submitted following certification. This ZOD represents a vertical expansion of the ZOD granted under current FDEP permits. The current ZOD extends to the base of the surficial aquifer; the expanded ZOD would extend into, but not through, the confining unit below the surficial aquifer. The reason for the expanded ZOD is the change in water quality in the cooling pond resulting from the use of reclaimed water as a source of makeup water for the cooling pond. The expanded ZOD will not extend beyond FPL's property boundaries. ZOD's normally are not set within a confining layer. However, some confining layers contain aquifer units that are large enough for ground water monitoring purposes. Properly located and installed, a groundwater monitoring well tapping a suitable aquifer unit within a confining layer will not constitute a risk of contamination of the underlying aquifer units. FPL analyzed impacts of groundwater discharges from the cooling pond on groundwater in the vicinity of the Plant site laterally and vertically. Based on these evaluations, there will be no exceedance of either primary or secondary groundwater quality standards at the lateral edge of the ZOD at FPL's property line for the 20-year life of the Project. There also will be no violation of groundwater quality standards at the bottom edge of the ZOD. The groundwater discharge will not significantly impair any designated use of receiving groundwater or any surface water nor will it result in a violation of any applicable groundwater standard outside the ZOD. At the edge of the Little Manatee River, there will be no exceedance of either primary or secondary maximum contaminant levels. Discharges to groundwater from the cooling pond will comply with Class G-II groundwater standards and with applicable surface water standards at the edge of the proposed ZOD. The ZODs for other existing on-site facilities, including the solids settling basin, the neutralization basin, and the sanitary drainfield, will extend horizontally to FPL's property line and vertically to the base of the surficial aquifer underlying those facilities. Other sources of potential discharge to groundwater are two former locations of underground fuel tanks, since removed, that are currently in the process of assessment and clean up. The contamination is not migrating and does not represent a threat to groundwater resources at, or beyond the boundaries of, the Plant site. Wetland Impacts and Mitigation Jurisdictional wetlands in the Project area, rail curve construction area and the by- product storage and disposal areas were delineated under a binding jurisdictional declaratory statement issued by the DEP on May 10, 1995. For the total Project, approximately 18.18 acres of State jurisdictional wetlands will be impacted, of which approximately 16.5 are jurisdictional to SWFWMD. Construction at the Plant site, temporary by-product storage area and the rail curve will impact approximately 0.68 acre of jurisdictional wetlands, which are primarily ditches. Construction of the backup by-product disposal area will impact approximately 17.5 acres of mostly highly disturbed, low-quality wetlands located in tomato fields adjacent to the Plant site. The Project has been designed and sited to avoid and minimize wetland impacts. Proposed wetland activities will have minimal adverse ecological or other effects. Using an ecosystems approach to mitigation, FPL has proposed the preservation, enhancement and restoration of a 129.6-acre area located on the northern site boundary. The mitigation area contains seven high-quality upland and wetland ecological communities, including over one-third mile of the Little Manatee River. The mitigation area is located within an extensive corridor of lands considered to have important ecological resource values and targeted by SWFWMD and Hillsborough County for potential acquisition. FPL's activities within the mitigation area will include, among other things, removal of exotic species, planting of native species in disturbed and eroded areas, and protection and management of the site as a wildlife habitat area. Based on a habitat function evaluation, the estimated value of the mitigation area compared to the impacted wetlands is 15 to 1. The proposed mitigation will provide environmental benefits beyond required mitigation and will be more than sufficient to offset all adverse effects caused by the wetland activities. Although the backup by-product disposal area is unlikely to be constructed, the stipulated Conditions of Certification require FPL to provide mitigation for the impacts at that site regardless of whether the backup by-product disposal area is ever constructed. In addition to the 129.6-acre area provided as mitigation for wetland and other impacts, FPL will preserve an environmentally sensitive area near Tampa Bay and 30-foot upland buffers adjacent to the Little Manatee River. FPL has also offered to convey to SWFWMD additional lands along the Little Manatee River within the Save Our Rivers Program area. The Project complies with all applicable requirements for permitting wetlands impacts, including sufficient mitigation for such impacts, provided in Chapters 403 and 373, F.S., and Chapters 62-312, 62-340, and 40D-4, F.A.C. Wetland activities are in compliance with the Manatee County Comprehensive Plan and Land Development Code, so long as the County's recommended variance from strict replacement mitigation required in the Plan and Code is included in the certification. The variance would allow the quality of the existing wetlands and uplands to be enhanced, and there would be assured preservation of wetlands to a greater degree than would normally be required. Creation of wetlands to replace impacted wetlands on strict numerical ratios and exact type-for-type basis may not always be successful. FPL's proposed enhancement and preservation of a large portion of riverine and uplands ecosystem is the preferred approach. Impacts to Flora and Fauna including Listed Species There will be no significant impacts to wildlife or plants, including listed species, from the Project. The mitigation proposed by FPL will more than compensate for any minimal effects on wildlife and plants, including listed species. Extensive ecological surveys were conducted on foot from early 1994 until September 1995 to determine wildlife and plant usage. Ninety percent of FPL's entire property was surveyed and the Project area was surveyed in detail along transects. In addition, scientific literature was reviewed to determine the likelihood of occurrence of species listed by the GFC and the U.S. Fish and Wildlife Service (USFWS). Only one listed wildlife species, the American alligator, which occasionally uses portions of the site, was observed. The alligator is given the lowest protection level, that of species of special concern, by the GFC and is listed as threatened by USFWS because of similarity to another protected species. Given the low habitat value resulting from the agricultural and industrial uses in the Project area, no other listed wildlife species was determined to have a high probability of occurrence. As requested by the GFC, prior to construction FPL will again conduct wildlife surveys for listed species and provide the results to the GFC. Impacts of Water Withdrawals on Little Manatee River and Tampa Bay The Little Manatee River is one of the most studied rivers in Florida, and extensive scientific literature is available on the River. The River is subject to tidal influence and is an estuarine system for approximately 10 miles from its mouth. In addition, the River is very responsive to rainfall and its freshwater flows vary greatly during the year and between years, ranging from very low flow to flows of thousands of cubic feet per second (cfs). This flow pattern results in extreme fluctuations in salinity in the estuary. The flora and fauna of the estuarine zone of the River are well adapted to the fluctuations in flow and salinity. In fact, many saltwater animal species rely on their tolerance to extreme conditions to use the low salinity estuarine habitat of the River, which is rich in food sources and low in predators, as a nursery. The Plant's existing withdrawals from the Little Manatee River have not caused adverse impacts to the ecology of the Little Manatee River or Tampa Bay. SWFWMD permitting requirements contain a presumption that withdrawals of up to 10 percent of daily flow from a stream will not cause unacceptable environmental impacts. See Chapter 40D-2, F.A.C., Part B, Basis of Review for Water Use Permit Applications, 4.2.C.2. FPL and SWFWMD provided unrebutted expert testimony and evidence that the proposed withdrawals of water from the Little Manatee River, including the emergency withdrawals which may exceed 10 percent of flow, will have no adverse impacts on the flora and fauna and water quality of the River and Tampa Bay. Using extensive environmental data collected by SWFWMD and other agencies, salinity in the River was modeled and extensively analyzed for three withdrawal scenarios for the 16- year period, 1978-1993: historical (existing) FPL withdrawals; proposed withdrawals following conversion; and river flows as if no withdrawals had ever taken place. For the three withdrawal scenarios, these analyses included the frequency of occurrence and the duration, of various salinity concentrations for a number of locations along the River. Following the conversion of the Plant to Orimulsion, minimal, temporary changes in salinity will occur only in areas which naturally experience extreme fluctuations in salinity. Because withdrawals will be prohibited when River flow is below 40 cfs, when salinity moves farthest upstream, the withdrawals of freshwater will not cause saltwater to move upstream into areas of the River which have always been fresh. Estuarine organisms thrive within two interrelated habitats: (1) a dynamic salinity- concentration habitat which shifts up- and downstream with tides and freshwater flows; and (2) a static physical habitat containing vegetation preferred by estuarine organisms. Productivity is highest for organisms during periods when their preferred dynamic salinity habitat overlaps their preferred vegetative habitat. Salinity of ten parts per thousand (10 ppt) is generally considered to be a significant boundary of the estuarine low salinity nursery habitat; it includes the part of the river where salinity is sometimes but not always less than 10 ppt. The proposed withdrawals will not affect the location of the dynamic salinity habitat. In fact, salinity areas of less than the 10 ppt salinity boundary of concern will be affected less under the proposed withdrawals than they have been under the historical withdrawals. Static vegetative habitats in the estuarine portions of the Little Manatee River generally fall into three zones comprised of plants whose success depends upon prevailing salinity concentrations. The first, most-saline zone, nearest the River's mouth, is dominated by mangroves. The second zone, which generally comprises the low-salinity nursery, is dominated by juncus (black needlerush) and the third is dominated by tidal freshwater species. Because the durations of salinity concentrations in the River will not be significantly altered by the proposed withdrawals, the boundaries of these static vegetative habitats will not be affected. Modelling and analyses were also undertaken to predict the relationship between salinity and location of maximum population abundance ("AMAX") for four representative fish species found in the Little Manatee River. Results showed that the minimal changes in salinity caused by the proposed withdrawals, including emergency withdrawals, may cause minimal, temporary population shifts but will not result in movement of fishes outside the ranges where they presently commonly occur. Moreover, since the fisheries within the River are not affected, the withdrawals will not affect the productivity of the regional fisheries in the River or Tampa Bay. The Little Manatee River contributes a small fraction (10.7 percent) of total annual freshwater flows into Tampa Bay. These annual average freshwater flows may be reduced by .003 percent by the proposed withdrawals, based on analysis of data for the 20-year period 1973-1993. The proposed withdrawals will have an insignificant effect on freshwater inputs to Tampa Bay. Moreover, any impacts on salinity levels in Tampa Bay from the proposed withdrawals will be limited to the area around the mouth of the River and will not affect biological resources in Cockroach Bay or the rest of Tampa Bay. FPL also analyzed the potential effect on riverine vegetation from any lowering of water levels in the Little Manatee River due to the proposed withdrawals. Vegetation and its water sources and needs were analyzed at representative cross sections of the upper and lower River. Results showed that the proposed withdrawals will have no effect on riverine vegetation due to changes in water levels. Riverine plants in the upper, narrow channelized freshwater portion of the River, where the withdrawals are made, are very tolerant of extremes in water availability, from drought to floods. As an example of the most extreme predicted effect from the proposed withdrawals, the water in the vicinity of the USGA gauging station at U.S. Highway 301 near the Manatee Plant would not reach the lowest river bank level (scarp), on average, five more days during the year (i.e., 91.34 percent of the days in the year) than without any withdrawals (when it would be below the first scarp 89.9 percent of the days in the year), difference of just 1.44 percent. Differences would be only 0.48 percent for the next scarp and even less for the remaining three scarps. This difference in water level would have no effect on riverine plants because they are naturally adapted to endure many weeks of drought. Similarly, there will be no impacts on vegetation in the lower portion of the River. This area is tidally influenced and the cross section analyzed was 700 feet wide compared to the 90-foot-wide channelized upper River cross section. Thus, given the huge volume of water in the lower River, the impact of the proposed withdrawals on water levels in this area would be too small to measure and too insignificant to have any effect on the vegetation. Due to their high tolerance, the estuarine flora and fauna in the River will not be affected by minimal additional fluctuations in salinity and flow. The proposed withdrawals from the Little Manatee River will result in flow and salinity fluctuations which are within existing natural ranges. Potential Impacts of Fuel Spills FPL adopted a three-pronged approach in addressing the potential for Orimulsion spills in Tampa Bay, i.e., spill prevention, spill mitigation, and understanding the ecological effects of any Orimulsion which may be released into the environment. Spill Prevention FPL and Bitor America Corporation, the fuel supplier, have put significant effort into preventing an Orimulsion spill. In the United States, there is presently a risk of a 1,000-barrel or larger fuel spill for every 10,000 port calls. The two major causes of major spills are groundings and collisions. Bitor America Corporation has committed to numerous management practices which constitute safety measures in excess of regulatory requirements to minimize the potential for spills. These additional safety measures include: All vessels and vessel owners used to transport Orimulsion from Venezuela to Port Manatee will be screened using a vetting system to eliminate the possibility of substandard ships and crews being used to transport Orimulsion into Port Manatee. Criteria to be used in screening vessels and vessel owners include limiting vessel age to no more than 10 years, requiring pumps and equipment on board to be specifically designed for Orimulsion, requiring vessels to be classified and crews to be licensed by the best classification societies, ensuring the vessels have in excess of $500 million insurance to cover accidents with a financially capable insurance company (this is in addition to the $250 million insurance Bitor America carries on the fuel for spills), limiting the crew to two languages, and requiring the vessel to have a proven safety record and adequate operational and safety management procedures. All vessels will be required to have double hulls with average compartment sizes no larger than 40,000 barrels. Use of double-hulled vessels will reduce the risk of a spill from a grounding by about 90 percent and from a collision by about 29 percent. Use of compartmentalized vessels will prevent the entire cargo from being released to the environment in the event of a rupture. All vessels will be required to have 20,000 barrels of empty cargo capacity on board. This would allow the transfer of Orimulsion from one compartment to another in case of an accident. Each vessel will have on board a Vessel Information Positioning System (VIPS) for Tampa Bay which will show where the vessel is in relation to other vessels and to the shipping channel during its transit of Tampa Bay. While VIPS is not yet in place, it is expected to be in operation by 1998. VIPS will be funded by users, and Bitor America Corporation has committed to being a user of the system once it is in place. All vessels will be required to maintain a course at least 10 miles off the Florida coast prior to turning into Tampa Bay, rather than the 3-mile clearance required by the U.S. Coast Guard. This requirement will keep vessels away from shallow water, thus reducing the risk of groundings. Prior to turning into the Egmont Key Channel and entering Tampa Bay, the vessels will be required to have at least three miles of visibility. Just west of Egmont Key, the vessel's emergency tow lines will be deployed for use by a tugboat, if necessary. Each vessel's entrance into the channel will be timed so it reaches the Turning Point into the Port Manatee channel at high tide and slack water. This requirement will provide maximum water depth and minimum current influence for the vessel when making the turn from the Tampa Bay channel into the Port Manatee channel. From Mullet Key to Port Manatee, a floating safety zone will be observed for all vessels carrying Orimulsion to the Plant. The floating safety zone, which will be enforced by the U. S. Coast Guard, will prevent other vessels from being within 1,000 yards of the front or rear of the vessel carrying Orimulsion and from being within 200 yards on either side of the vessel. This will effectively make the shipping channel a one- way channel for Orimulsion-carrying vessels. As vessels pass Egmont Key, they will take on two 4,000 horsepower escort tractor-type tugs which will escort the vessel through the channel using the floating safety zone. The U. S. Coast Guard has determined that escort tugs are an effective means of minimizing the chance of a grounding as a result of the vessel's loss of steering or power. At the Turning Point from the Tampa Bay channel to the Port Manatee channel, the vessel will become attached to the escort tugs through its deployed tow lines and will be assisted into the docking area. A weakness of FPL's SCA is that it is not clear to what extent Bitor's commitments are enforceable by the Siting Board. Bitor is not a co-applicant. None of Bitor's commitments are made part of the conditions of certification, and many of them are neither in the SCA nor in the sufficiency responses. To be made enforceable at least against FPL, they should be made part of the conditions of certification. FPL will also exceed regulatory requirements during offloading of Orimulsion by utilizing a secondary hose containment sleeve, or its equivalent, for its offloading hoses to minimize the probability and volume of any spills during offloading at Port Manatee. This secondary containment should effectively contain any Orimulsion that may be released as a result of a leak from connections in the offloading hose or a burst offloading hose. With the management practices to which Bitor America Corporation and FPL have committed for the transport and offloading of Orimulsion, the risk of a 1,000-barrel or larger spill occurring has been reduced to once every 77,000 port calls. Although the number of port calls for fuel delivery to the Plant will approximately double after the conversion to Orimulsion, the risk of a spill occurring in any given year will nevertheless be reduced to about one-fourth the present risk. Spill Mitigation While offloading Orimulsion from vessels at Port Manatee, FPL will comply with all applicable federal, state and local regulatory requirements. For example, FPL will provide booming at the dock on either side of the offloading hose, either in the form of a booming gate system or a deep-skirted boom between the dock and the vessel. The transport of Orimulsion from Venezuela to Port Manatee will also comply with all applicable requirements of the U.S. Oil Pollution Act of 1990 (OPA '90). Bitor America Corporation and its sister company, PDV Marina-Venfleet, have prepared a spill contingency plan which will be used by vessels carrying Orimulsion into Tampa Bay. This plan has been approved by the U. S. Coast Guard. Bitor America Corporation also has adopted a corporate spill response plan which offers technical information on Orimulsion spills to assist its customers or vessel owners in the event of an accident. An atlas of sensitive environments in Tampa Bay has also been assembled by contractors to Bitor America Corporation which identifies strategies for responding to an Orimulsion spill in the area of each sensitive habitat in Tampa Bay. While Bitor America is satisfied with the equipment for responding to Orimulsion spills which it has identified in its spill response plans, it is constantly looking for new equipment. As new equipment is identified and demonstrated to be effective in responding to an Orimulsion spill, Bitor America Corporation will modify its plans to include the new equipment. FPL has three spill response plans which would potentially have application to a spill of Orimulsion -- the FPL Port Manatee Terminal Oil Spill Response Plan, the Manatee Plant Oil Spill Response Plan, and FPL's Corporate Oil Spill Response Plan. Each of these plans has received all necessary regulatory approvals, and FPL could lawfully bring Orimulsion into Port Manatee under the current version of these plans. Nevertheless, FPL will expand its plans to include the recently developed Orimulsion-specific spill response tools and strategies before Orimulsion is delivered to Port Manatee for the Plant. Those updates will be reviewed and approved by the Coast Guard, the U. S. Environmental Protection Agency, and the U. S. Department of Transportation to ensure the revisions meet applicable regulatory requirements. The FPL Port Manatee Terminal Oil Spill Response Plan applies to the offloading hose, the transfer piping from the dock to the terminal, the on-site storage tanks at the terminal, and the transfer and piping system to the Plant. The Manatee Plant Oil Spill Response Plan applies to the on-site storage of fuel at the Plant and the piping to the Plant's boilers. FPL's Corporate Spill Response Plan is supported by a corporate response team that has been established to respond to spills that are beyond the capabilities of the local on-site team. FPL has developed a 2-volume oil spill contingency planning system. Volume 1 consists of the appropriate facility's oil spill response plan, e.g., the plans for the FPL Port Manatee Terminal or the Plant; Volume 2 consists of the corporate response plan. FPL's corporate response team includes approximately 40 positions, typically with two individuals trained for each position at all times. The team members participate in annual training exercises and are on-call 24 hours a day, every day of the year. In the event of a spill, response is directed utilizing a unified command concept, in which decisions to guide response operations are jointly made by the FPL incident commander, the U.S. Coast Guard on-scene coordinator, and the Florida on-scene coordinator. Typically, the U. S. Coast Guard on-scene coordinator is the Captain of the Port, and the Florida on-scene coordinator is the manager for emergency response from the Department of Environmental Protection. The U. S. Coast Guard on-scene coordinator has the authority to take over the spill and direct all response operations if deemed necessary. FPL's spill response methodologies which would be followed in the event of an Orimulsion spill have been successfully employed historically by FPL and the oil industry. In the event of an Orimulsion spill in the Tampa Bay area, FPL should be able to assemble its crews and equipment and begin recovery activities within four hours. This response time is achieved in FPL's annual spill response drills. Orimulsion and No. 6 fuel oil react differently when released in seawater such as that found in Tampa Bay. When No. 6 fuel oil is released in seawater, a very large fraction of the mass almost immediately forms a slick and float to the surface. Underneath the slick, a relatively low fraction of the mass dissolves in the water. By contrast, when Orimulsion is released in seawater, its components disperse in the water column almost immediately. In a shallow, dynamic system such as Tampa Bay, even at low salinity levels, Orimulsion components would be well- mixed throughout the water column. Other processes which affect the fate of Orimulsion and No. 6 fuel oil in seawater such as Tampa Bay include vertical motion (buoyancy), dispersion (both lateral and vertical), dissolution, sedimentation (absorption of fuel particles onto sediments), biodegradation (including chemical and photolytic degradation), entrainment, coalescence and evaporation. All of these processes were incorporated as parameters into a 3- dimensional fates model, known as SIMAP, to predict the movement of Orimulsion and No. 6 fuel oil released in Tampa Bay. SIMAP, which stands for "Spill Impact Mapping," includes a series of 2- and 3- dimensional fates models which evaluate trajectories, transport and weathering of the constituents of spilled fuels. One SIMAP model runs multiple times to provide a probable distribution of fate. SIMAP has been enhanced based on the results of peer- reviewed scientific research to include algorithms for the fates processes affecting the constituents of Orimulsion so that it now has the capability of evaluating the fate of Orimulsion spills. SIMAP is capable of accurately predicting the fate of Orimulsion accidentally spilled in the Tampa Bay environment, including the concentrations of its constituents in 3- dimensional space and time. Several Orimulsion-specific spill response tools and strategies have also been developed and would be used in the event a spill of Orimulsion were ever to occur in Tampa Bay, including Port Manatee. The Ori-Boom, a boom with a 10-foot-deep skirt, has been developed and tested for use in responding to spills of Orimulsion. The 10-foot skirt on Ori-Boom is five layers thick, and includes an outer covering of ballistic material for strength, inner layers of geotextile, and an inner core filter which allows water but not bitumen to pass through. The ability of water, but not bitumen particles, to pass through the skirt of the Ori-Boom has been demonstrated in tests. The Grizzly skimmer has also been developed and tested for use in responding to spills of Orimulsion. The ability of the Grizzly skimmer to remove coalesced bitumen from the surface of the water has been successfully demonstrated. The tests of the capability of the Ori-Boom, the Grizzly skimmer, and other equipment useful in the recovery of Orimulsion were observed by numerous government officials, including representatives of the U. S. Coast Guard and the Florida Department of Environmental Protection. Conventional absorbents, such as oil snares, pom-poms, or filament absorbents, have proven to be very effective in recovery of bitumen particles. These materials are typically used to "polish up" the water by removing fugitive particles after a skimmer, such as the Grizzly skimmer, has removed the bulk of the bitumen. Five thousand feet of Ori-Boom and two Grizzly skimmers will be staged at Port Manatee for use in responding to spills of Orimulsion. Additionally, conventional oil spill equipment which can be used in responding to an Orimulsion spill will be staged at Port Manatee, such as 8,700 feet of conventional 18-inch skirted boom, 200 feet of 36-inch skirted boom, absorbent materials, and 3 shallow-draft boats. FPL also has a stockpile of oil spill response equipment, including approximately 6,100 feet of 36-inch skirted boom, loaded in six semi-trailers in West Palm Beach which can be delivered to any of FPL's facilities. Altogether, FPL has approximately 40,000 feet of conventional skirted boom which could be used to keep bitumen out of the sensitive habitats in Tampa Bay. There is also a stockpile of oil spill response materials at each of FPL's power plants and fuel terminals. Moreover, the Coast Guard, various contractors and cooperatives, and other terminal operators have conventional booms located in the Tampa Bay area which would be effective in responding to an Orimulsion spill in shallow waters. All of the materials staged for use in response to fuel spills is periodically inspected and maintained in good operating condition to ensure its availability in the event of a spill, as required by OPA '90. SIMAP will be incorporated into FPL's spill response plans. In the event Orimulsion is ever spilled in Tampa Bay, the 3-dimensional fates model in SIMAP would be an effective tool to assist in response efforts by predicting the direction and movement of the spill plume. This information would aid the spill response managers in time-critical decisions on where it is most appropriate to deploy a containment boom around the bitumen plume and exclusion boom to protect sensitive habitats. To obtain predictive results quickly for use in developing spill response strategies, the user of SIMAP can control several model parameters, such as the number of Lagrangian particles tracking the various fuel components, the length of the time-step between calculations, and the length of the model run. In a spill event, SIMAP would be run initially using data files on hand which most closely resemble the actual environmental conditions at the scene of the spill. Such a model run could be accomplished in a few minutes. As realtime information becomes available following a spill, SIMAP would be rerun to provide more refined output on spill movement and direction. As a spill response tool, SIMAP can be used to predict the movement of Orimulsion to allow the response teams to deploy protective equipment around sensitive habitats. SIMAP can also be used to direct water column sampling efforts to locate the largest concentration of the spill plume prior to deployment of the containment boom. Since currents are more predictive than winds, SIMAP is more capable of predicting the movement of Orimulsion in the water column than the movement of No. 6 fuel oil as a surface slick. In the event of an Orimulsion spill, deep-skirted boom (with the skirt in a furled position) could be towed to the site by two boats and placed in the path of the spill plume. The two ends of the boom would then be connected and the skirt unfurled to create a cylinder around the largest portion of the bitumen plume. Once the Ori- Boom has encircled the bitumen, it will be allowed to float and drift with the current along with the bitumen, thus keeping the large concentration of bitumen surrounded by the boom. Then shear pumps would be operated inside the cylinder to force coalescence and surfacing of the bitumen. As the bitumen surfaces, Grizzly skimmers would be used to remove the bitumen from the water. Sensitive habitats which are expected to be in the path of the spill plume would be protected by placing exclusion boom in front of the habitats. It is an accepted spill response strategy to identify sensitive habitats, prioritize those habitats as to their sensitivity, and protect the most sensitive habitats first. To facilitate the protection of sensitive habitats, FPL and Bitor America Corporation would use the atlas of sensitive environments in Tampa Bay which identifies the location and type of sensitive habitats, prioritizes those habitats as to their sensitivity, and specifies the most appropriate response strategies to protect each particular sensitive habitat. This atlas of sensitive environments in Tampa Bay will be incorporated into FPL's spill response plans. Since Orimulsion spilled in Tampa Bay would move back and forth with tidal currents, rather than rapidly moving with the wind to shore as does a No. 6 fuel oil surface slick, more time would be available in the event of an Orimulsion spill to plan response strategies. The spill response technologies, strategies and plans FPL and Bitor America have identified for responding to any Orimulsion spill that might occur in Tampa Bay are comparable to those which would apply to a spill of No. 6 fuel oil, the current fuel used at the Plant and brought into Port Manatee. Ecological Effects of Orimulsion Released in Tampa Bay Tampa Bay is the largest estuary system in the State of Florida. It is roughly 60 kilometers long and the typical width is on the order of 10 kilometers. Tampa Bay is a relatively shallow system, with a mean depth of about 3.7 meters. The shipping channel which traverses Tampa Bay is approximately 15 meters deep and 122 meters wide. Prior to the early 1900's, Tampa Bay was dominated in its marine productivity by seagrass. Because of human activities since that time, however, the current spatial extent of seagrasses is about 15 percent of the overall Bay. Changes in bathymetry and erosional losses in Tampa Bay preclude the reestablishment of seagrasses in some of their former range absent extraordinary measures to restore former bay bottom. Tampa Bay's primary productivity now comes from phytoplankton in the system. Notwithstanding the loss of seagrass, Tampa Bay is an extremely diverse estuarine system, providing habitat to approximately 250 species of fish, 1200 species of invertebrates, and 200 species of macro-algae. The mangrove systems and marsh grasses on the shoreline area, as well as the remaining seagrasses, provide part of the energetic base for the Tampa Bay system and structurally provide habitat critical as nursery grounds for many species of fish and invertebrates. To gain an understanding of the ecological effects of an Orimulsion spill in Tampa Bay, FPL commissioned the University of Miami, Rosenstiel School of Marine and Atmospheric Sciences, to coordinate a study of the comparative ecological effects from a release into the environment of Orimulsion and No. 6 fuel oil, the fuel currently used at the Plant. The study was called the "Comparative Oil/Orimulsion Spill Assessment Program" (COSAP). COSAP involved independent, peer-reviewed scientific research conducted by scientists at several institutions, including the University of Miami, Florida International University, University of Massachusetts, University of North Texas and the University of South Florida. FPL provided the sponsorship and defined the nature of the problem on which study was desired, but had no role in conducting the research or in the conclusions drawn from that research. COSAP included research on fuel characterization, chemical and physical weathering, and toxicological studies for selected flora and fauna indigenous to Tampa Bay for both Orimulsion and No. 6 fuel oil. COSAP also included the identification of resources and ecosystems at risk, hydrodynamic modeling, and fate and transport modeling for Tampa Bay. The COSAP research was integrated into a comparative ecological risk assessment (CERA) in which the existing ecological risk of No. 6 fuel oil being released in the Tampa Bay environment was compared to the ecological risk which would exist from a similar-sized spill of Orimulsion in that environment. The different reactions of Orimulsion and No. 6 fuel oil in seawater were significant in assessing the comparative ecological risks because with No. 6 fuel oil, the slick effects and the movement of the slick by wind forces had to be considered. With Orimulsion and the dissolved component of No. 6 fuel oil, the tide and currents within the waterbody largely control the movement of the components. Under COSAP, toxicity tests were conducted on mangroves, seagrasses, and important fish and invertebrate species actually found in Tampa Bay, in addition to the typically- utilized surrogate laboratory species. This is a significant advancement beyond what is normally done in an ecological risk assessment. Historically, fuel oil spills have had varying degrees of impact on seagrasses and mangroves. Chronic toxicity tests demonstrated that Orimulsion would not cause widespread mortality of the seagrass beds or mangrove components of Tampa Bay. Toxicologically, the aromatics from No. 6 fuel oil were found to be a thousandfold more toxic to fish and invertebrate species than the components of Orimulsion at similar concentrations. In the event of a spill, however, the concentration of Orimulsion components in the water column would be approximately a thousandfold greater than the concentration of No. 6 fuel oil aromatics. To evaluate the comparative risk of No. 6 fuel oil and Orimulsion released in Tampa Bay, one must consider both the concentrations to which organisms would be exposed and the relative toxicities. COSAP's Comparative Ecological Risk Assessment (CERA) To incorporate both exposure concentrations and relative toxicities in the COSAP CERA, the researchers used a scenario-consequence analysis. That is, hypothetical sets of conditions were defined to identify a range of conditions that might occur under different types of spill conditions in Tampa Bay. Then the fate, transport, exposure and ecological effects of both a No. 6 fuel oil spill and an Orimulsion spill for these scenarios were evaluated and compared. The scenarios developed for the CERA included four locations: (1) Egmont Key, the location of a major fuel oil spill in 1993; (2) the Skyway Bridge, the location of a collision which caused a portion of the former bridge to collapse; (3) the Turning Point, the 90 degree turn from the main shipping channel into the shipping channel which leads into Port Manatee; and (4) the Port Manatee facility where offloading occurs. The volume of the spills in the scenario-consequence analysis was 10,000 barrels, except for the Port Manatee facility scenarios for which the spill volume was presumed to be 1,000 barrels. Scenarios covered both wet and dry seasons. For the summer scenarios (the wet season), a relatively wet year and a relatively dry year were included. For each season and location, scenarios were chosen at four different start times to represent the range of combinations of wind and tidal events. Altogether, the CERA analysis included 96 scenarios. Each scenario was modeled using a hydrodynamic model developed by the National Oceanic and Atmospheric Administration (NOAA) National Ocean Survey and further calibrated by the University of Miami researchers to the Tampa Bay system. Output from this hydrodynamic model was input to the 3-dimensional fate and transport model, SIMAP. For each scenario, movement of the various components of No. 6 fuel oil or Orimulsion was simulated for five different layers within Tampa Bay. Hourly concentrations were output and transferred to a Datagraphic Information System. The outputs were then integrated over time until concentrations were below the level where significant ecological effects would occur. Exposures (a combination of concentration, time, and component) were then graphically displayed using a scaling methodology and overlaid on the distribution of species in Tampa Bay, allowing for a direct comparison of toxicological effects. In assessing the comparative ecological risks of Orimulsion and No.6 fuel oil, numerous conservative design parameters and assumptions were used for the CERA. For example, the most sensitive life stages of the most sensitive species were utilized, maximum exposure times were assumed even for organisms which could swim out of the affected area after a spill, and a large spill volume was assumed. COSAP CERA Conclusions While an Orimulsion spill would have greater water column effects than a similar- sized spill of No. 6 fuel oil, the No. 6 fuel oil spill would have the added oil slick formation and associated shoreline impacts which are not anticipated from an Orimulsion spill. Overall, the risk to the Tampa Bay ecosystem from a spill of Orimulsion is essentially comparable to the existing risk of a No. 6 fuel oil spill of similar size. The risks from a spill of Orimulsion would not be significantly greater than, nor significantly less than, the risks to the Tampa Bay ecosystem from a similar-sized spill of No. 6 fuel oil. Peer Review of COSAP Research and Conclusions A Science Advisory Panel provided independent scientific peer review of the COSAP research and conclusions. The Panel included leading scientists in the fields of ecological risk assessments, spills of oil in the marine environment, coastal systems, and several representatives of state and federal regulatory agencies. The Science Advisory Panel was involved in a meeting at the inception of COSAP to discuss the overall research goals and objectives, the structure of the research program, and the specific protocols for the toxicological experiments. The Panel also examined the models and statistical approaches to be used for the study. The Panel specifically addressed the issue of the applicability and appropriateness of the ecological risk assessment paradigm, and participated in the development of the scenarios used in the CERA. The Panel reviewed an interim technical support document and provided detailed comments on all components of the research at that time prior to development of the CERA report. The Science Advisory Panel approved the use of the ecological risk assessment framework, the experimental components, the experimental design, the statistical analyses, the scaling methodology, and the conclusions reached in the CERA. Effects of Estrogenic Compounds Following a Spill The Orimulsion to be used at the Plant will include no more than .22 percent nonylphenol polyethoxylate surfactant. The surfactant allows the bitumen particles to remain emulsified in the water, forming a stable emulsion. Hundreds of millions of pounds of nonylphenol polyethoxylate surfactants are used annually in the United States in domestic and industrial products, such as soaps and detergents. Globally, more than a half billion pounds of nonylphenol polyethoxylate surfactants are used annually. Nonylphenol polyethoxylates released in an aquatic environment are broken down by actions of bacteria and sunlight. The final degradation products would be carbon dioxide and water. The warm temperature, intense sunlight and seawater in Tampa Bay would increase the speed of the surfactant's degradation process. Neither the surfactant in Orimulsion nor its intermediate degradation products are expected to persist for more than 30 to 45 days in Tampa Bay, if a spill occurs. Both No. 6 fuel oil and Orimulsion may result in compounds which mimic estrogen being released in the environment following a spill. The polycyclic aromatic hydrocarbons (PAHs) in No. 6 fuel oil are suspected to have such estrogenic properties. Similarly, some of the intermediate breakdown products of the nonylphenol polyethoxylate surfactant in Orimulsion are suspected to have estrogenic effects. Whether there are ecological consequences of such estrogenic compounds when released in the environment has not been established. To the extent marine organisms are exposed to any of the intermediate degradation products of Orimulsion's surfactant during the 30 to 45 days they may persist in Tampa Bay, once the exposure is removed the organisms are able to purge their systems of those compounds. Consequently, no long-term bioaccumulation of these compounds is expected. The surfactant and any effects it may have when released in the environment should not persist for long periods of time due to rapid degradation and the ability of marine organisms to purge their systems of the degradation products after the exposure is removed. Summary of Comparative Spill Risks Given the comparable ecological risks to Tampa Bay of Orimulsion and No. 6 fuel oil, the comparable spill response capabilities for the two fuels, and the substantially lower risk of a spill of Orimulsion than that for No. 6 fuel oil being delivered to the Plant, overall the risk to Tampa Bay will be significantly reduced after the conversion of the Plant to Orimulsion from that which currently exists from the transport of No. 6 fuel oil. Moreover, the conversion of the Plant to Orimulsion will reduce the risk of transfer- related fuel spills statewide. Every time there is a transfer of fuel from one fuel-holding tank to another, whether that holding tank is on a ship or barge, or is part of a terminal or refinery, there is a risk of a transfer- related spill. Deliveries of fuel oil to FPL's plants require from one to three transfers in Florida, depending on whether the terminal at the receiving port is connected directly to the electrical generating plant by pipeline (as at the Plant) or whether fuel must be transferred from the terminal to the plant by barge. Because the conversion to Orimulsion will increase the utilization of the Plant, and reduce the utilization of other FPL plants that burn higher cost oil, it will reduce the number of deliveries and transfers of fuel oil to other FPL plants within the State. This will reduce the number of FPL's annual fuel transfer operations in Florida by 14 percent, from 635 before the conversion to 548 following the conversion. This translates directly into a reduced probability of fuel spills. In addition, over 80 percent of the No. 6 fuel oil burned in Florida is refined at Gulf Coast plants. There are opportunities for transfer spills when fuel ultimately destined for FPL is delivered to and shipped from those refineries. These opportunities for Gulf Coast spills are eliminated with Orimulsion, which is transferred only once, off the coast of Venezuela, before it reaches the receiving terminal at Port Manatee.
Conclusions Burden of Proof 97 Summary of Conclusions 98 Inapplicable Surface Water Quality Permitting Criteria 102 Statues and Rules on Surface Water Discharges 103 Rejection of Similar Arguments in NYDEC Case 105 Outstanding Florida Waters 107 Federal Certification 110 Ecosystem Management 111 Legal and Permit Agreement Covers Surface Water Withdrawals from the Little Manatee River 112 Cooling Pond Groundwater Discharges 117 Secondary Impacts 118 Air emissions (nitrogen and ozone) 120 Salt Water intrusion and associated groundwater "pollution" 122 Groundwater discharges from cooling pond 123 Impacts to residents from truck traffic 123 Cumulative Impacts 124 Ground Water Quality Standards 127 Vertical Extension of ZOD is Consistent with DEP Rules 127 FPL Retains Exemption from Secondary Groundwater Standard 132 BACT Review 133 Availability of Variances 135 RECOMMENDATION 137 APPENDIX 138 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA SITING BOARD IN RE: FLORIDA POWER & LIGHT COMPANY, MANATEE ORIMULSION DOAH Case No. 94-5675EPP PROJECT, APPLICATION NO. 94-35. /
Recommendation Based on the entire record of this proceeding and the foregoing findings of fact and conclusions of law, it is recommended that the Siting Board enter a final order that: Grants Florida Power & Light Company certification pursuant to Chapter 403, Part II, F.S., for the construction and operation of the Manatee Orimulsion Conversion Project subject to the Conditions of Certification filed on January 17, 1996, modified to add Bitor's commitments set out in Finding of Fact 189; and Grants variances from the Manatee County Comprehensive Plan and Land Development Code for wetland mitigation ratios and from the Manatee County Land Development Code for location of required landscaping. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5675EPP To comply with the requirements of Section 120.59(2), F.S. (1995), as construed by the decision in Harbor Island Beach Club, Ltd., v. Dept. of Natural Resources, 476 So. 2d 1350 (Fla. 1st DCA 1985), the following rulings are made on the parties' proposed findings of fact: FPL/DEP/SWFWMD Proposed Findings of Fact. All of the proposed findings of fact proposed by these parties have been reviewed. This review has included consideration of the response to the proposed findings filed by Manasota-88 and MCSOBA. This review reveals that most of the proposed findings of these parties were proven by a preponderance of the evidence and, except as follows, they have been accepted. 3. Last sentence clarified to reflect that, while there will be few other changes to the plant itself, there will be severally significant changes to the project area as a result of conversion to Orimulsion. 12. First sentence, rejected as only proof of a reasonable expectation is possible; otherwise, accepted. 75. Last sentence, "significantly" rejected as argument; otherwise, accepted. 82. Last sentence rejected as irrelevant; otherwise, accepted. 84.-85. In part, conclusions of law; otherwise, accepted. 86. Fourth sentence, rejected as contrary to the evidence in that both analyses should be conducted; otherwise, accepted. Rejected as contrary to the evidence to the extent that it implies that the Preserve is an embayment; otherwise, accepted. Last sentence, rejected as contrary to the evidence to the extent that it implies that the recent increase is uniform throughout the bay, as opposed to in parts of the bay and overall; otherwise, accepted. 106. Rejected as not proven that there will be no cumulative effect over time; otherwise, accepted and accepted in its entirety if it means only that an equilibrium will be reached at some point in time. 108. "Will not," in first two sentences, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 110. "Demonstrated," in second sentence, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 126. "Will not cause," in second sentence, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 128.-130. In part, conclusions of law; otherwise, accepted. In part, conclusions of law; otherwise, accepted. 154. "1.44 percent of the time" clarified; otherwise, accepted. 159. Rejected in part in that Bitor's commitments are not part of the stipulated Conditions of Certification; otherwise, accepted. 161. Rejected in part in that Bitor's commitments are not part of the stipulated Conditions of Certification; otherwise, accepted. Manasota-88/MCSOBA Proposed Findings of Fact. Much of what is proposed by Manasota-88 and MCSOBA as findings of fact actually are conclusions of law. Proposed findings of fact numbered 4 through 203 actually are labeled "Findings Concerning Applicable Laws; most of these propose conclusions of law (although a few proposed findings of fact, mostly related to agency policy, are included.) Many of the other proposed findings of fact numbered 204 through 435 also actually propose conclusions of law. Even as construed by the decision in Harbor Island Beach Club, supra, Section 120.59(2), does not require rulings on proposed conclusions of law. 1.-2. Accepted. Subordinate and unnecessary. (94-5675EPP covers all permits, etc., from all agencies, except for the PSD and NPDES permits.) Conclusion of law. 5.-6. Accepted. Subordinate and unnecessary. 7.-18. Conclusions of law. Subpara. b., rejected as not supported by any evidence; rest, conclusions of law. Rejected as not supported by any evidence. 21.-24. Conclusions of law. 25. Accepted that DEP attempts to follow the guidelines, but they are not clear and are susceptible to different interpretations. 26.-48. Conclusions of law. 49. Accepted but irrelevant or argument. 50.-58. Conclusions of law. 59.-60. In part, conclusion of law; otherwise, accepted but conclusion of law, and either irrelevant or argument. 61. Conclusion of law. 62.-63. Accepted. Accepted but irrelevant because it is not regulated as a discharge. In part, conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the greater weight of evidence; otherwise, accepted. 66.-68. Conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the evidence. 69.-70. Conclusion of law. 71.-72. In part, conclusion of law; otherwise, accepted. 73.-77. Conclusions of law. 78.-79. Conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the greater weight of evidence. Conclusion of law. In part, conclusion of law; otherwise, rejected as contrary to the greater weight of evidence. 82.-86. Conclusions of law. 87. Accepted (but DEP does not issue such permits per se. 88.-90. Conclusions of law. 91. In part, conclusion of law; to the extent that it refers to agency policy, accepted. 92.-96. Conclusions of law. 97.-98. Accepted. 99.-114. Conclusions of law. 115. Rejected as contrary to the evidence. 116.-120. Conclusions of law. 121.-123. Accepted. 124.-126. Rejected as contrary to the evidence. 127. In part, conclusion of law; otherwise, ejected as contrary to the evidence. 128.-131. Accepted. Rejected as contrary to the evidence (as to "any other form of record evidence"). Conclusion of law. Last sentence, accepted; otherwise, conclusion of law. Rejected as contrary to the greater weight of evidence (that DEP uses "two different non-rule policy interpretations.) First sentence, rejected as contrary to the greater weight of evidence; second, conclusion of law. 137.-142. Conclusions of law. 143. Rejected as contrary to the greater weight of evidence. 144.-145. Subparagraphs, accepted; rest, conclusions of law. Conclusion of law. Accepted. 148.-150. Conclusions of law. 151.-153. Accepted (but as to 153, only sodium is a primary standard.) 154. Rejected as not clear from the evidence what is "common regulatory practice." 155.-157. Conclusions of law. 158.-159. Rejected as contrary to the greater weight of the evidence (that DEP was "deviating from the common regulatory practice.") 160.-168. Conclusions of law. 169. Rejected as contrary to the greater weight of the evidence. 170.-172. Conclusions of law. 173. In part, conclusion of law; otherwise, rejected as contrary to the greater weight of the evidence (that salt water intrusion results). 174.-179. Conclusions of law. 180.-181. Accepted. 182.-190. Conclusions of law. 191. Accepted. 192.-193. Conclusions of law. Rejected as contrary to the greater weight of the evidence. Accepted. 196.-203. Conclusions of law. 204. "Very sensitive" rejected as argument not supported by evidence; otherwise, accepted. 205.-211. Accepted. 212.-213. Rejected as contrary to the evidence that excessive nitrogen is the only cause; otherwise, accepted. 214.-216. Accepted. Rejected as contrary to the greater weight of the evidence as to all of Tampa Bay; accepted as to parts of the bay. "At least 10 percent," rejected as contrary to the evidence; also, the TBNEP proposal is not clear from the evidence in the record. (Cf. Garrity, T. 2110-2111.) Rejected as contrary to the greater weight of the evidence. (The estimate was calculated using a .27 lbs/mmBtuM emission rate.) 220.-221. Accepted. (Variation primarily is driven by rainfall.) Rejected as contrary to the greater weight of the evidence. (The witness's estimate, which was very rough, was referring to atmospheric deposition, not nitrogen loading; the two are different, and the percentage increase of the former actually is higher than the actual percentage increase in the former resulting from the Orimulsion conversion project.) First clause (the premise), accepted; second (the conclusion), rejected as contrary to the greater weight of the evidence. (Ozone may affect "dry deposition"; but much more atmospheric deposition is "wet deposition," which can vary by an order of magnitude depending on rainfall.) 224.-225. Rejected as contrary to the greater weight of the evidence. (The witness was referring to atmospheric deposition, not total nitrogen loading. See 222., above.) Rejected as contrary to the greater weight of the evidence. Accepted. (However, while there might be some longer term impacts from sedimentation, those affects will be marginal, first because the impacts themselves are marginal, and second because nitrogen entering the sediments also will be subject to denitrification through biological and chemical processes and to burial over time.) 228.-229. Conclusions of law; also, subpara. c., rejected as contrary to the greater weight of the evidence. Accepted in the general sense that it is 21 tons in the wrong direction. However, the "detrimental effect" was not measurable. Accepted. (It is not clear what "water quality levels" are meant. F.A.C. Rule 62-302.530(48)(b) speaks for itself. Presumably, "water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Conclusion of law whether the rule applies. In any event, rejected as contrary to the greater weight of the evidence that "no evidence" was presented. Rejected. First, conclusion of law whether air emissions are a "proposed discharge," and whether the "clearly in the public" test applies. Second, assuming that the test applies, and that it raises a mixed question of law and fact (not a pure question of law), neither of the witnesses cited were in a position to give competent testimony on the issue. Accepted. (There was no evidence as to where in the bay the violations occur.) Conclusion of law; also, subparagraphs a. and d., rejected as contrary to the greater weight of the evidence. Conclusion of law; also, subpara. c., rejected as contrary to the greater weight of the evidence. Accepted. (It is not clear what "ambient water quality levels" are meant. F.A.C. Rule 62-302.530(48)(b) speaks for itself. Presumably, "ambient water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. 240.-241. Rejected as contrary to the greater weight of the evidence. (There was no indication of what the witness meant by "nuisance condition." Compare testimony to F.A.C. Rules 62- 302.500(1)(c) and 62-302.530(47). Accepted (assuming reference is being made to atmospheric deposition. See 222., above.) Rejected as contrary to the greater weight of the evidence. (TBNEP projection was hearsay.) 244.-245. Rejected as contrary to the greater weight of the evidence. 246.-249. Accepted. 250. Rejected as contrary to the greater weight of the evidence. ("Trophic," not "tropic," state index.) 251.-253. Accepted. 254.-255. Rejected as contrary to the greater weight of the evidence. Accepted. (It is not clear what "water quality levels" are meant, or what "nuisance standard" is meant. In any event, both F.A.C. Rules 62-302.500(1)(c) and 62-302.530(47) speak for themselves. Presumably, "water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (The rule was judged not to apply.) Rejected as contrary to the greater weight of the evidence. (Other parameters were "reviewed" in the sense that they were considered along with salinity, but only salinity was studied in detail.) 260.-262 Accepted (but, as to 261., the extent of "further degradation" of water quality required to degrade biological productivity is not specified, so fact is not useful.) Accepted, but a conclusion of law whether it is "foreseeable" for purposes of "cumulative effects." Rejected as contrary to the greater weight of the evidence. (The evidence was 5 percent of the months.) Rejected as contrary to the greater weight of the evidence. (The option was considered and rejected.) Otherwise, accepted. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (The evidence was it was 6, but it is changing.) Accepted but so general and speculative as not to be useful. 269.-270. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (While absolute certainty does not appear to be possible at this time, DEP seems to have made this determination based on the best information available.) Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as to RPM; accepted as to EKMA. 275.-278. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. (While absolute certainty does not appear to be possible at this time, it is believed based on the best information available that the Tampa Bay airshed is VOC-limited.) Conclusion of law. 283.-284. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. 288.-289. To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Accepted. The evidence is not clear that the expansion is "foreseeable." 293.-296. Accepted. 297. Rejected as contrary to the greater weight of the evidence. (42.23 is an absolute maximum per day; there also is a maximum 30-day rolling average.) 298.-299. Rejected as inaccurate calculation. 300.-301. Accepted. 302. Rejected as contrary to the greater weight of the evidence. (Emissions from the Manatee Plant were not part of the Hillsborough/Pinellas inventory of stationary sources.) 303.-304. Accepted. 305. Rejected as contrary to the greater weight of the evidence. See 298.-299. and 302., above. 306.-307. Accepted. 308.-309. Rejected as contrary to the greater weight of the evidence. See 302., above. Accepted. Rejected as contrary to the greater weight of the evidence. (There was circumstantial evidence, but a "correlation" was not determined.) Rejected as contrary to the greater weight of the evidence. Not clear from the evidence, especially without a corresponding VOC reduction. Also, so general as to be of little usefulness. 314.-315. Accepted. 316. Rejected as contrary to the greater weight of the evidence. (The evidence was that, at the time of the hearing, the SWUCA was a proposed rule and that the proposed withdrawals are in the Eastern Tampa Bay WUCA.) 317.-318. See 316., above; otherwise, accepted. The Floridan was not specified; otherwise, accepted. Accepted, assuming "sources" and "uses" mean the same thing. See 316., above. Accepted. Accepted (although specific reference only was to the former FPL wells.) Rejected as not supported by evidence on which a finding of fact could be made. 325.-326. Rejected. (These appear to be conclusions of law, although the intended legal significance of "straight transfer" is not made clear.) 327. Conclusion of law. 328.-329. Rejected as contrary to the greater weight of the evidence. 330. See 316., above. 331.-332. Rejected as contrary to the greater weight of the evidence. See 316., above. Rejected as contrary to the greater weight of the evidence. (The explanation was that the SWFWMD regulations allow it.) 335.-337. Rejected as contrary to the greater weight of the evidence. 338. Accepted. (That is why the ZOD was expanded vertically.) 339.-341. Rejected as contrary to the greater weight of the evidence. 342. Cumulative. 343.-344. Rejected as contrary to the greater weight of the evidence. Unintelligible. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. See 346., above. Rejected as contrary to the greater weight of the evidence. Rejected as not supported by any evidence. Rejected. Not a legal requirement. 352.-353. Cumulative. 354. Rejected as not supported by any evidence. 354.(Number 2) Not clear what is meant by "water communities." An oil spill will affect the surface and shore more; Orimulsion would affect the water column and bottom more, especially in deeper water. 355.-356. Accepted. Rejected as contrary to the greater weight of the evidence. Rejected as not clear from the evidence what the impact on property values will be. Also, not subject to determination in this case. Rejected. F.A.C. Rule 60Q-2.031(3). Not subject to determination in this case. Rejected. Subpara. a., rejected as contrary to the greater weight of the evidence. Subpara. c., unclear what is being referenced. Also, effect on government jurisdictions other than Manatee County not subject to determination in this case. Rejected as not supported by any evidence. Rejected as contrary to the greater weight of the evidence. (As to c., no evidence as to what is meant or how it would help.) Rejected as contrary to the greater weight of the evidence. (However, as proposed, Bitor is the responsible party.) Rejected as contrary to the greater weight of the evidence that these methods are "reasonable." (As to d., the rule does not apply.) Rejected as not supported by any evidence that this alternative is "reasonable." 367.-368. Rejected as contrary to the greater weight of the evidence. Unintelligible. Conclusion of law. Accepted. 372.-377. Conclusions of law. 378.-379. Accepted. 380.-383. Conclusions of law. 384. Accepted. 385.-386. Conclusions of law. 387. Accepted. 388.-389. Conclusion of law. Accepted. Rejected as not supported by any evidence. 392.-395. Conclusions of law. 396. Rejected as contrary to the greater weight of the evidence. 397.-398. To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence as to "foreseeable cumulative" impacts; also no evidence that foreseeable cumulative impacts "justify higher than normal BACT." Conclusion of law. Rejected as contrary to the greater weight of the evidence. (DEP tries to follow it, but it is complicated and difficult to apply.) Rejected as not supported by the evidence. (The only evidence was that EPA suggested that DEP give proper consideration to the claims of some SCR manufacturers that their technology achieves .10 lbs/mmBtum.) Accepted. 403.-404. Accepted (assuming reference is made to average costs.) Accepted. Rejected as contrary to the greater weight of the evidence. (There also were other factors.) Accepted. (However, the initial application has been modified in many respects during the course of these proceedings.) Accepted. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that it is BACT or that it was the only calculation making those emissions rate assumptions. Accepted. (Incremental cost calculations also are recommended.) 412.-414. Conclusions of law. 415. Accepted. 416.-418. Rejected as not supported by facts on which findings of fact can be made. 419. Accepted. (However, that was just one of several calculations and not FPL's final calculation.) 420. Rejected as not clear from the evidence that both calculations used .395 lbs/mmBtum. 421.-422. Accepted. 423.-426. Rejected as contrary to the greater weight of the evidence. (As to 425., it is not technically feasible for this application, so it cannot be economically feasible; where technically feasible, it has been shown to be economically feasible as well.) 427. Accepted (although it varies from year to year.) 428. Rejected as not supported by any evidence. 429. Accepted (but vanadium content is not high enough to create problems of technical feasibility.) 430.-435. Cumulative. Conclusions of law. Manatee County Proposed Findings of Fact. 1.-10. Accepted. Rejected as contrary to the evidence and to proposed finding 12 that it is the only required variance. Accepted. To the extent that accepted proposed findings are not contained in the Findings of Fact, there were considered to be subordinate, irrelevant or otherwise unnecessary. COPIES FURNISHED: Peter C. Cunningham, Esquire Carolyn S. Raepple, Esquire Kathleen L. Blizzard, Esquire Douglas S. Roberts, Esquire Gary V. Perko, Esquire Hopping Green Sams and Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Charles T. "Chip" Collette, Esquire Twin Towers Office Building Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 H. Hamilton Rice, Esquire Mark P. Barnebey, Esquire Jeffrey N. Steinsnyder, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712 Roger S. Tucker, Esquire General Counsel Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702-2491 Preston T. Robertson, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Bridgett A. Ffolkes, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact South of the intersection of Blue Angel Parkway and Gulf Beach Highway in southwest Escambia County lies the wooded, 69-acre tract, designated "Site F," onto which ECUA proposes to dispose up to three million gallons of wastewater a day. Petitioner Westerman operates a marina nearby. The individual intervenors own houses in the vicinity as, apparently, do other members of the intervening association. A state agency with wide ranging environmental responsibilities, DER permits construction of wastewater treatment facilities in conformity with its rules. Sewage disposal is one of several utility services ECUA provides residents of Escambia County. A Trip to the Beach Under orders from DER and the Environmental Protection Agency (EPA) to cease discharging directly into Bayou Chico ("a very impacted body of water ... [with] very difficult problems" T. 101), ECUA proposes to build a pumping facility and install enough 24-inch pipe to enable it to send effluent from its wastewater treatment plant in Warrington to Site F, for "rapid rate" land application. Upgraded since DER and EPA forbade direct discharges into Bayou Chico, the Warrington plant now employs advanced treatment techniques to remove most phosphorous and nitrogen from its effluent. Nevertheless, in order to mollify regulators, ECUA has plans to ship the effluent through some seven miles of pipe to Site F. In the opinion of its executive director, ECUA is "an easy target . . . . Whether it's practical or fair is really not the question." Id. He feels, "cost is not a factor" (T. 102) that the regulatory authorities have taken into account. Sandy Soils Site F straddles a coastal ridge, vegetated dunes that separate Garcon Swamp from Big Lagoon. Elevations vary from 29 feet above mean sea level at the crest of the ridge to nine feet above mean sea level in the swale that traverses the property. Highly permeable surficial sand extends to depths ranging between 20 and 35 feet below grade. Under the surficial sand, a layer of silty sand, extending down 55 to 60 feet, overlies another layer of very clean sand, much denser than the surficial sand. At depths of 90 to 110 feet, a clay aquiclude undergirds these sandy strata. Using field and laboratory test results, experts put the average hydraulic conductivity of the surficial sands at 35 feet per day, of the silty middle sand layer at 10 to 15 feet per day, and of the clean but dense sands on top of the clay at 5 to 10 feet per day. In addition to laboratory results, two pump tests support these conclusions. Results of two other pump tests indicating hydraulic conductivity of 4.7 and 5.0 feet per day were dismissed as unreliable. Sand caving in compromised at least one of these tests. As far as the record reveals, no bench-scale or pilot-scale hydraulic testing took place. According to DER's Mr. Reinning, there was "more soil testing on this site than [he had] seen on any other permit event." T.II. 217. Although the soils on the site are "relatively uniform," (T.II. 212) no layer of sand is perfectly uniform. Mr. Jacobs, one of ECUA's consultants, testified that a boring on one of the proposed pond sites revealed a one-foot layer of sand and organics with a vertical hydraulic conductivity of one foot per day. T.I. 245. Perhaps Mr. Jacobs was referring to boring B-2, which, according to the log, reflects a two-foot interval of peat and decaying wood, at a depth of slightly more than 13 feet. ECUA's Exhibit 2. No other boring gave evidence of this layer. The nearest bore hole to B-2 was more than 200 feet away. Expert testimony that the borings did not indicate an "extensive pocket," and gave no reason to fear a "per(c)hed water table," (T.II. 214) was not controverted. Construction Plans ECUA proposes to construct 16 percolation ponds or cells on Site F. Seven pairs of cells would be terraced on a north-south axis, with an eighth, noncontiguous pair at an angle in the southwestern portion of the property. Cell bottoms, at elevations ranging between 16 and 27 feet above mean sea level, would have a surface area aggregating some 23 acres (1,027,900 square feet.) ECUA would erect a perimeter fence and install warning signs. Except for valves, "no mechanical equipment [would be) involved in the disposal site," T.123, nor are "bright lights," id. planned. Water flowing into percolation ponds does not create an aerosol. Odors are not foreseen. Encircling each infiltration basin, berms three to three and a half feet higher than the cell bottoms would contain effluent and deflect sheet flow. Except for rain falling directly into the cells, stormwater would not reach the percolation cells. Chances that effluent augmented by rainfall would overflow the berms are remote. A 100-year, 24-hour return storm would not interrupt operation of the facility. No percolation pond site lies within the 100-year flood plain. No percolation basin is to be located within 500 feet of a potable water supply well or class I or class II surface water; or closer than 100 feet to the boundary of the property. Situated within some 20 acres of wetlands, a brackish pond lies about 1,000 feet from the nearest cell planned, between Site F and Big Lagoon into which the pond opens. At the nearest point, Big Lagoon itself comes within 1200 feet of a planned percolation cell. A swale or slough bridged by Blue Angel Parkway runs southwesterly north and west of the main phalanx of percolation ponds ECUA proposes, then turns a corner and runs southeasterly, separating the two cells proposed for the southwest portion of the property from the others. The nearest percolation pond is to be built about 100 feet from wetlands associated with the swale. Loading Rates ECUA plans to direct wastewater into half the cells one week and the remainder the next, alternating like the squares on a chessboard. The exact cycle is not a condition of the construction permit, however, and computer modelers assumed loading cycles consisting of two two-day periods. As applied to the total bottom area of percolation cells, the average daily loading rate for three million gallons a day (mgd) would amount to 2.91 gallons per square foot. Because half the ponds would be resting at any given time, ponds receiving effluent would experience inflow at an average rate of 5.82 gallons per square foot. In deciding the length of the loading cycle, as "the soil gets lower in permeability you have to really stretch your time for loading out, because it takes the water much longer to get out of the loading area." T.I. 188. But, with respect to the long-term capacity of the system, "the period of loading and resting . . . really doesn't significantly affect . . . how the site is expected to perform." T.II. 222. In the absence of bench-scale or pilot-scale tests heretofore, the applicant "intend[s] to load test this site, because just for the various concerns, because it is a big site." T.I. 189. Groundwater Effects Class G-II groundwater under the site now flows generally southerly toward the brackish pond and Big Lagoon. An expert put the rate of flow under the site at .22 feet per day, but concluded that the rate increased to approximately a half foot a day between Site F and Big Lagoon. As far as is known, groundwater under the sites proposed for the infiltration ponds rises no closer to the surface than six to nine feet, even under wet conditions, although the evidence by no means conclusively established that it would never rise higher. Some groundwater emerges in the swale during wet periods, and flows in the swale as far as the brackish pond, to which other groundwater makes regular, direct contribution. At the edge of the lagoon, further out in the lagoon and possibly in the Gulf of Mexico, still other groundwater comes up as springs. At least initially, the sandy soils would accept effluent readily. Until and unless actual experience showed that the facility could handle the three mgd for which it is designed, the plan is to dispose of no more than 2.5 million gallons of effluent a day. Before equilibrium is attained, ongoing disposal of effluent would gradually raise the level of groundwater under the site, inducing, on the preexisting, sloping surface of ambient groundwater, a mound, on which 16 smaller mounds (corresponding to the loading nozzles discharging wastewater into the percolation ponds) would superimpose themselves, half swelling, like so many goose eggs, half subsiding, at any given time. Adding effluent should not materially alter the ultimate direction of flow. For the most part, even groundwater flowing in other directions off the mounds induced under the site would eventually turn south toward the lagoon. But a steeper gradient should speed up the flow. Percolating effluent would increase the volume not only of seepage into the swale but also of subterranean flow reaching both the brackish pond and the lagoon. Increased seepage upslope from the slough would flow down into the swale, along the stream bed, and into the brackish pond. Monitoring As modified at hearing, ECUA's monitoring plan contemplates eight wells and four surface water monitoring points from which water samples would be periodically taken for analysis, to determine levels of nitrogen, phosphorous and other chemical and biological constituents of concern. Once the facility began operating, no well would yield "background" samples uninfluenced by the effluent. T. I. 221. The wells are all to be located on ECUA property and, therefore, close enough to the percolation ponds to receive ground water flows radiating from the mounds adding the effluent would induce. Final Destination Effluent emerging in seepage, perhaps as much as 75 percent of the total (T. III. 47), could reach Big Lagoon, by way of the swale and the brackish pond, soon after regaining the surface of the land. Wetland vegetation would filter such flows, already diluted underground and sometimes by stormwater runoff, on their way to the lagoon. Effluent that mixed with groundwater traveling to Big Lagoon underground would not show up in the lagoon for months or years. But when it arrived, much diluted and after such attenuation of pollutants as the largely inorganic soils afforded, it would also contribute to subtle changes in the waters of Big Lagoon. Virtually all effluent would ultimately end up in Big Lagoon. T.I. 234; T.III.45. Two channels connect Big Lagoon to Pensacola Bay to the east, and a single, more constricted channel connects it to Perdido Bay to the west. Tides influence the circulation of the Class III water within Big Lagoon, variously calculated to amount to some ten or eleven billion gallons of clean salt water. Through Pensacola Bay and Perdido Bay, Big Lagoon communicates with the Gulf of Mexico. As the tide rises, water from the adjacent bays enters the long and narrow reaches of Big Lagoon, at either end. As the tide ebbs, water in the lagoon (including a significant portion of bay water introduced by the preceding tide) flows out either end. ECUA's expert's claim that tides flush the lagoon in less than nine days did not take this back-and-forth movement into account, or look specifically at the four-billion gallon basin into which the brackish pond overflows. Big Lagoon lies south of the mainland and north of Perdido Key, one of the barrier islands paralleling the coast. These islands and waters north of them, extending as far as the southern boundary of the intracoastal waterway, comprise the Gulf Islands National Seashore. By rule, the waters of Big Lagoon south of the intracoastal waterway have been designated Outstanding Florida Waters. Two to three hundred yards wide, the intracoastal lies not far offshore the mainland. Water Quality Analysis of a single ground water sample revealed nutrient levels, but neither the applicant nor DER developed any data specific to Big Lagoon about nutrient levels there. Chemical analyses done on four samples of lagoon water (at petitioner's expense) revealed no nitrate nitrogen above detection levels in any of the samples, and no ammonia nitrogen above detection levels in three of the four samples, but disclosed 0.08 parts per million in the fourth. Three of the four samples contained 0.02 parts phosphorous per million, while the fourth had phosphorous in a concentration of 0.03 parts per million. Tests with water taken from Big Lagoon showed that the addition of both nitrogen and phosphorous compounds (but not the addition of one without the other) coincided with algal growth in one of four sets of samples, each set including a control in which such growth did not occur. In other samples of lagoon water into which algae were introduced, the addition of nitrogen, either alone or in combination with phosphorous, seemed to cause blue-green algae to predominate, instead of the dominant, indigenous pennate diatoms. In these experiments, ammonia chloride was added to produce nitrogen concentrations of 17.5 grams per liter, six times greater than would be allowed in the effluent, as much as 17 times greater than the concentration petitioner's expert predicted for wastewater reaching the lagoon, and two orders of magnitude above ambient levels. The experimenter also added sodium phosphate dibasic heptahydrate to create phosphorous concentrations of four grams per liter, which is also two orders of magnitude above levels naturally occurring in Big Lagoon. Special permit conditions limit (on an annual average) total nitrogen in effluent sent to Site F to 75 pounds per day, and phosphorous to one milligram per liter, which would amount to 25 pounds in three million gallons, the maximum daily flow. Permit conditions also prescribe limits for acidity and alkalinity (pH must be greater than 6.0 and less than 8.5), suspended solids, and biochemical oxygen demand. Basic dis- infection is required. Assuming ECUA disposed of three mgd at Site F, up to 25 pounds of phosphorous could be added to the estuary daily, on average, or more than a ton of phosphorous quarterly, if steady state were attained. Although three times as much nitrogen might occur in the effluent, oxidation and reduction would cause some nitrogen to enter the atmosphere as a gas instead of remaining dissolved until it reached the estuary. Not only organic components of the soil but also organic matter arriving in the effluent and accumulating on pond bottoms would contribute to denitrification. Salinity in the brackish pond would decline. A DER employee, Mr. Swartz, testified that placing three mgd of effluent in the planned percolation ponds "would not result in degradation of the surface water," (T. II. 127) citing "our experience here in Florida." Id. Whatever may be said as regards the brackish pond, no evidence gave substantial reason to question the accuracy of this opinion as it relates to waters south of the intracoastal waterway.
Recommendation It is, accordingly, RECOMMENDED: That DER deny the application, without prejudice to the filing of another after successful bench-scale or pilot-scale hydraulic testing and after ECUA has made arrangements for a ground water monitoring well from which samples unlikely to be affected by the effluent may be drawn. DONE and ENTERED this 2nd day of February, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 2nd day of February, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 8, 13, 14, 16 and 18 have been adopted, in substance, insofar as material. Most of petitioner's proposed finding of fact No. 15 accurately recites testimony adduced, but Shuba testified that algal growth has been stimulated by nutrient concentrations comparable to those Dohms said would occur in water entering Big Lagoon, not in concentrations likely to exist once this wastewater-bearing contribution mixed with other water in the lagoon. Petitioner presented information about nutrient levels in lagoon water at hearing. Computer modeling suggested break out, which has been considered. Petitioner's proposed findings of fact Nos. 17 and 19 accurately recite the testimony. DER's proposed findings of fact Nos. 1, 2, 3, 4, 5, 10, 11, 12, 13, 15, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 42 and 43 have been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 6, the rate of flow increases south of the proposed pond sites. With respect to DER's proposed findings of fact Nos. 7 and 8, seasonal high ground water elevations were not shown conclusively. With respect to DER's proposed finding of fact No. 9, the aquiclude lies 90 to 110 feet below the surface. With respect to DER's proposed finding of fact No. 14, the rule requires a five-day rest. With respect to DER's proposed findings of fact Nos. 33, 34 and 35, the current rules do require mounding analysis, and there seemed to be a consensus that ground water enhanced by effluent would seep to the surface downslope from the ponds. With respect to DER's proposed findings of fact Nos. 36 and 37 and 44, free form agency action is technically immaterial. With respect to DER's proposed findings of fact Nos. 38, 39, 40 and 41, effluent would have mixed with groundwater before reaching Big Lagoon, but increased levels of nitrogen and phosphorous could be detected, as a result. ECUA's proposed findings of fact Nos. 1, 3, 4, 5, 6, 8, 10, 11, 12, 15, 16, 17, 20, 23, 24, 25, 26, 27, 28, 36, 37 and 38 have been adopted, in substance, insofar as material. With respect to ECUA's proposed findings of fact Nos. 2, 13, 21 and 32, the evidence showed that it was not unlikely that effluent, after percolating through pond bottoms and mixing with groundwater, would seep to the surface down slope. With respect to ECUA's proposed finding of fact No. 7, proposed cell bottom elevations fall in this range. With respect to ECUA's proposed finding of fact No. 9, the evidence did not establish that the high water table will always be nine feet below the pond bottoms. With the induced mound, ECUA's proposed finding of fact puts it at one to two feet. With respect to ECUA's proposed finding of fact No. 14, the tidal range is too high and the calculation ignores the back and forth movement of waters at either end of the lagoon. With respect to ECUA's proposed findings of fact Nos. 18 and 19, the current standard pertains total nitrogen. With respect to ECUA's proposed finding of fact No. 22, freeboard will vary with rainfall and effluent levels. ECUA's proposed findings of fact Nos. 29, 30, 31 and 34 relate to subordinate matters. With respect to ECUA's proposed finding of fact No. 33, more than one analysis was done. With respect to ECUA's proposed finding of fact No. 35, the applicant has given reasonable assurance. COPIES FURNISHED: Robert W. Kievit, Esquire Lester M. Westerman 10451 Gulf Beach Highway Pensacola, FL 32507 James Mullins 11001 Gulf Beach Highway Pensacola, FL 32507 Susan Guttman 11315 Sea Glade Drive Pensacola, FL 32507 Cindy L. Bartin, Esquire 15 West Main Street Pensacola, FL 32501 Joseph W. Landers, Esquire 310 West College Avenue Tallahassee, FL 32302 Stephen K. Hall, Esquire Asst. General Council Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 =================================================================
Findings Of Fact On or about July 25, 1989, Stephen G. Thompson, Permitting Engineer with the Department of Environmental Regulation (DER), predecessor of the Department of Environmental Protection (DEP), wrote a memorandum to Howard Rhodes, Deputy Director of DER's Bureau of Water Facilities Planning and Regulation. The memo relayed a question being posed by an engineering consultant working for Pasco County on its Lake Padgett Effluent Disposal System, DER construction Permit No. DC51-159899. The question was whether Special Condition 15 should be deleted from the permit. The Lake Padgett permit was for a rapid rate infiltration (percolation pond) land application system for the disposal, via ground water recharge, of domestic wastewater effluent. Through the question passed along to Rhodes, Rhodes understood that the system included percolation ponds and drainage ditches on the site, which the County's engineer referred to as "perimeter ditches." Rhodes was given to understand that the perimeter ditches were designed to improve the performance of the system by lowering the ground water table at the site and increasing the hydraulic capacity of the ponds. The question posed by the County's engineer indicated to Rhodes that Special Condition 15 to the Lake Padgett permit prohibited discharges from the perimeter ditches into wetlands, citing Section 403.086 of the Florida Statutes. The County's engineer suggested: Since these perimeter ditches are being installed 100 feet from the wetted perimeter of the percolation ponds, I believe it is correct to define the water in said ditches as groundwater rather than wastewater effluent. Therefore, I do not believe that Chapter 403.086 would apply to the water in these perimeter ditches. In passing the question along to Rhodes, Thompson also cast it in his own words: If the permittee designs the project with a perimeter ditch system 100 feet away from the edge of the percolation/evaporation pond wetted area, will the discharge from the ditch system have to meet WQBEL or Grizzle-Figg limits if applicable? According to Chapter 17-610.517(2) and 17-610.522, the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as an effluent disposal system. The question is whether the 100 feet buffer will allow the descrip- tion of the perimeter ditch water to be ground water or a co-mingled ground/reclaimed water. Rhodes reviewed the question and answered by memorandum dated September 15, 1989, which stated in salient part: Based on this review, discharges from perimeter ditch systems of percolation ponds must meet surface water quality requirements of advanced treatment, water quality based effluent limitations, or Grizzle- Figg limitations where applicable. Attached are comments which explain why these surface water quality requirements must be met. * * * COMMENTS Depending on site-specific parameters such as the infiltration rate, existing ground water table, subsurface flow, percolation pond depth, and ditch depth, the content of the water in the ditch may be either ground water or a mixture of ground water and reclaimed water. Because these parameters are site-specific, the content of water in the ditch is site-specific. However, knowledge of whether the water in the ditch is ground water or a mixture of ground water and reclaimed water is not important in determining the effluent limitations of the discharge from the ditch. . . . Because construction of perimeter ditches is associated with the operation of percolation ponds, the ditch should be considered part of the wastewater treatment facility and any discharge from the ditch must meet the applicable requirements of Rule 17-6, F. A. C., or Chapter 403, F.S. Also, because perimeter ditches are constructed around percolation ponds to improve performance, the ditches are located near the percolation ponds and some reclaimed water is normally drained to and collected in the ditch. Rule 17-610.517(2), F.A.C., specifically states discharge from perimeter drainage features that collect reclaimed water after land application are restricted by surface water quality considerations of additional treatment or the WQBEL provisions of Rule 17-6, F.A.C. . . . It was argued that because the zone of discharge is 100-feet from the percolation pond and the ditch is also 100-feet from the percolation pond, the water in the perimeter ditch system is ground water. However, zone of discharge as defined by Rule 17-6.0321(33), F.A.C., does not mean that all water located outside the zone of discharge is ground water. Zone of discharge is more appropriately interpreted as a "mixing zone" for ground water. Waters inside the zone do not have to meet water quality standards. If waters outside the zone do not meet water quality standards, the permit is violated. The following question also was raised: Why do the effluent limitations of Chapter 403.086, F.S., apply for the discharge of a perimeter ditch constructed 100-feet from a percolation pond when they do not apply for the discharge from a percola- tion pond constructed 100-feet away from wetlands? The answer to this question is: The discharge from the ditch is a surface water discharge whereas the discharge from the percolation pond is a ground water discharge. In the case of ground water discharges, ground water quality standards must be met outside the zone of discharge. . . . It seems that [the second sentence of F.A.C. Rule 17-610.517(2)] was interpreted to mean; if more than 50 percent of the applied reclaimed water is collected in the ditch, the water is considered effluent and if 50 percent or less of the applied reclaimed water is collected, the water is considered ground water. This is not the intent of this rule. The intent is; if more than 50 percent of the applied reclaimed water is collected in the ditch, the applied reclaimed water is considered an effluent disposal system and if 50 percent or less of the applied reclaimed water is collected, the applied reclaimed water may be considered a reuse system. Therefore, this section of rule is not applicable to the Lake Padgett effluent disposal question. The permittee requested Specific Condition 15 be deleted from the permit. In some cases, this may be done. However, if it is deleted, a condition should be added to the permit that the discharge from the ditch meet surface water quality requirements of advanced treatment, WQBELS, or Grizzle-Figg limitations, where applicable . . ., [and] the permittee should also be required to provide reasonable assurance that the required discharge limitations can be met. On March 15, 1990, another Department employee, named Jim Bottone, prepared a two-page memorandum generally discussing the increasing use of perimeter ditches conjunction with rapid-rate land application systems. The memorandum concluded: "In summary, the use of perimeter ditches in conjunction with rapid-rate systems appears to be a 'force fit' of technology in order to save money on disposal. These systems appear to circumvent the intent of the Department's reuse initiative." The discussion included a statement: "Rule 17- 610.517(2) states that the discharge from a perimeter ditch shall be restricted by surface water quality considerations." On December 13, 1990, the Department's Reuse Coordinator, David W. York, Ph.D., P.E., sent Richard Harvey, Deputy Director of the Department's Division of Water Facilities, a memorandum on the subject of perimeter ditches and rapid-rate land application systems. It referred to the Rhodes and Bottone memos, stating that the Rhodes memo "clearly addresses the applicability of surface water quality considerations for this type of system." It also stated: If perimeter ditches are used in association with land application projects, and if the ditches receive flows containing a portion of the applied reclaimed water, the ditches are subject to surface water quality constraints. Surface water quality constraints may include technology-based effluent limits, water quality-based effluent limits, or Grizzle-Figg limitations, as appropriate. F.A.C. Rule Chapter 17-610 pertains to "Reuse of Reclaimed Water and Land Application." F.A.C. Rule 17-610.517 is entitled "Surface Runoff Control." Paragraph (1) of the rule requires that the land application site be designed to prevent the entrance of surface runoff, if necessary by placement of berms around the application area for this purpose. Paragraph (2) of the rule provides: Discharge from perimeter drainage features that collect reclaimed water after land application, shall be restricted by surface water quality considerations pursuant to additional treatment or WQBEL provisions of Rules 17-600.420(2) and 17-600.430, F.A.C., respectively. Rapid-rate land application systems that result in the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as effluent disposal systems. Rules 17-600.420(2) and 17-600.430 establish additional levels of wastewater treatment for facilities that discharge to surface waters. The Department is in the process of amending part (2) of Rule 17- 610.517(2) by separating the sentences, making the second sentence a new part (3) of the rule, and explaining that the new part (3) would be used solely to classify projects as "reuse" or "disposal" and would in no way affect the requirements of part (2) of the rule. This amendment explicitly would codify in the rule the explanation in the Rhodes memo that the second sentence of current Rule 17-610.517(2) addresses the classification of disposal systems and, to that end, establishes as a benchmark the "collection and discharge [in the ditches] of more than 50 percent of the applied reclaimed water." F.A.C. Rule 17-610.522, entitled "Subsurface Drainage," provides: Subsurface drain systems, where necessary, shall be designed in accordance with appropriate portions of Rule 17-610.300(4)(f), F.A.C., concerning Soil Conservation Service criteria for subsurface drains. The drainage system shall be designed so that the seasonal high water table is drawn down to a minimum of 36 inches below pond bottoms during resting periods. Pollutant content (including fecal coliforms) of the reclaimed water collected by the underdrains may be further restricted by surface water quality considerations pursuant to additional treatment or WQBEL provisions of Rules 17-600.420(2) or 17-600.430, F.A.C., respectively. Rapid-rate land application systems that result in the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as effluent disposal systems. The Department also is in the process of amending Rule 17-610.522 by separating the sentences, making the last sentence a new part (2) of the rule, and explaining that the new part (2) would be used solely to classify projects as "reuse" or "disposal" and would in no way affect the requirements of part (1) of the rule. The 50 percent figure in F.A.C. Rules 17-610.517(2) and 17-610.522 was chosen based on deliberations by the 1988-89 Reuse Technical Advisory Committee (RTAC). The RTAC offers technical expertise and advice to the Department as revisions to Chapter 17-610 are drafted. A criterion was needed for categorization purposes, and it was determined that 50 percent represented a reasonable break point. The members of the RTAC represent the national leaders in reuse of reclaimed water. F.A.C. Rule 17-610.521(2) establishes a minimum 500-foot setback distance between the wetted areas of a reuse land application site and Class I and II surface waters of the state, reduced to 100 feet if high-level disinfection is provided. F.A.C. Rule 17-610.521(5) provides that setback distances to other classes of surface waters "shall be sufficient to provide reasonable assurance of compliance with applicable water quality standards." F.A.C. Rule 17-610.521(8) provides: The minimum setbacks . . . shall only be used if, based on review of the soils and hydrogeology of the area, the proposed hydraulic loading rate, quality of the reclaimed water, expected travel time of the ground water to the potable water supply wells and surface waters, and similar considerations, there is reasonable assurance that applicable water quality standards will not be violated. There is a valid reason for not establishing the same minimum setback distances between the wetted edge of percolation ponds and perimeter drainage features that collect reclaimed water after land application. Unlike reclaimed water that disperses and diffuses in the ground before a part of it reaches a water body solely through the ground, even though reclaimed water may travel through the ground for 100 feet before reaching perimeter drainage features, those features then collect and concentrate the resulting mixture of reclaimed water and groundwater for discharge into the surface water, typically at a limited number of discharge points and at higher volumes and flow rates. At some point as it migrates through the ground and mixes with other ground water, reclaimed becomes indistinguishable from naturally occurring ground water. It is, of course, difficult to pinpoint precisely how far from the wetted edge of a percolation pond this occurs.
The Issue The issues are whether to (a) issue an Environmental Resource Permit (ERP) to the Department of Transportation (DOT) and Martin County (County) authorizing construction and operation of a surface water management system to serve a project known as the Indian Street Bridge; (b) issue DOT a letter of modification of ERP No. 43-00785-S authorizing roadway and drainage modifications to the Kanner Highway/Indian Street intersection; and (c) issue DOT a letter of modification of ERP No. 43-01229-P authorizing roadway and drainage modifications to Indian Street between the intersections of Kanner Highway and Willoughby Boulevard.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Citizens for Smart Growth, Inc., is a Florida 501(c)(3) corporation with its principal place of business in Palm City, Florida. It was formed by Odias Smith in August 2001, who serves as its president. The original directors were Kathie Smith, Odias Smith, and Craig Smith, who is the Smiths' son. The composition of the Board has never changed. According to the original Articles of Incorporation, its objectives are "preserving and enhancing the present advantages of living in Martin County (Quality of Life) for the common good, through public education, and the encouragement of reasonable and considered decision making by full disclosure of impacts and alternatives for the most appropriate use of land, water and resources." The exact number of members fluctuates from time to time. There are no dues paid by any member. At his deposition, Mr. Smith stated that no membership list exists; however, Kathie Smith stated that she currently has a list of 125 names, consisting of persons who at one time or another have made a contribution, have attended a meeting, or asked to be "kept informed of what's going on or asked to be on a mailing list or a telephone list, so they could be advised when we have meetings." No meetings have been held since 2006. Therefore, the Petitions filed in these cases have never been discussed at any meetings of the members, although Ms. Smith indicated that telephone discussions periodically occur with various individuals. Kathie Smith believes that roughly 25 percent of the members reside in a mobile home park north of the project site on Kanner Highway on the eastern side of the St. Lucie River, she does not know how many members reside on the western side of the St. Lucie River, and she is unaware of any member who resides on the South Fork of the St. Lucie River immediately adjacent to the project. Although the three Petitions allege that "seventy percent of the members . . . reside and/or recreate on the St. Lucie River," and in greater detail they allege how those members use that water body or depend on it for their livelihood, no evidence was submitted to support these allegations that 70 percent (or any other percentage of members) use or depend on the South Fork of the St. Lucie River for recreational or other activities. Petitioners Odias Smith and Cathie Smith reside in Palm City, an unincorporated community just south of Stuart in Martin County. They have opposed the construction of the new bridge since they moved to Palm City in 2001. It is fair to infer that Mr. Smith formed the corporation primarily for the purpose of opposing the bridge. Their home faces north, overlooking the South Fork of the St. Lucie River, from which it is separated by Saint Lucie Shores Drive and a narrow strip of common-ownership property. A boat dock extends from the common-ownership property into the St. Lucie River, providing 5 slips for use by the Smiths and other co-owners. The home is located three blocks or approximately 1,000 feet from the proposed western landfall of the new bridge. Due to the direction that the house faces (north) and the site of the new bridge, the surface water management system elements associated with the bridge will not be visible from their property. Mr. Smith believes, however, that when looking south through a veranda window on the second floor of his home, he will be able to see at least a part of the new bridge. From the front of their house, they now have an unobstructed view of the existing Palm City Bridge, a large structure that crosses the St. Lucie River approximately six- tenths of a mile north of their home, and which is similar in size to the new bridge now being proposed by the Applicants. The Smiths' home is more than 500 feet from the Project's right- of-way, and they do not know of any impact on its value caused by the Project. While the Smiths currently engage in walking, boating, running, fishing, and watching wildlife in the neighborhood or the South Fork of the St. Lucie River, there was no credible evidence that the Project would prevent them from doing so after the bridge and other improvements are constructed. Also, there was no evidence showing that the ERP Letter Modifications will cause them to suffer any adverse impacts. In fact, as noted below, by DOT undertaking the Project, the neighborhood will be improved through reduced flooding, improved water quality, and new swales and ponds. The County is a political subdivision of the State. It filed one of the applications at issue in this proceeding. DOT is an agency of the State and filed the three applications being contested. The District has the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Part IV, Chapter 373, Florida Statutes, and Title 40E of the Florida Administrative Code. The Department of Environment Protection (DEP) has delegated certain authority to the District, including the authority to authorize an applicant to use sovereign submerged lands via a public easement within the District's geographic jurisdiction. The Project Construction of a new bridge over the St. Lucie River has been studied extensively by the Applicants for over twenty years. DOT has awarded the contract and nearly all of the right-of-way has been purchased. The Project will begin as soon as the remaining permits are acquired. The Project is fully funded through the American Recovery and Reinvestment Act of 2009 and County funding. The Project is located in the County and includes 62.06 acres of roadway bridge development and 12.45 acres of sovereign submerged lands. The Project begins on the west side of the St. Lucie River on County Road 714, approximately 1,300 feet west of Mapp Road in Palm City and ends on the east side of the St. Lucie River approximately 1,400 feet east of Kanner Highway (State Road 76) on Indian Street. It includes construction and operation of a surface water management system to serve the road and bridge project. The total length of the Project is approximately 1.96 miles (1.38 miles of roadway and 0.58 miles of bridge) while the total area is approximately 74.51 acres. After treatment, surface water runoff will discharge to the tidal South Fork of the St. Lucie River. The Project encompasses a bridge crossing the South Fork of the St. Lucie River and the Okeechobee Waterway. Both are classified as Class III waters. The bridge transitions from 4 to 6 lanes east of the Okeechobee Waterway and will require a 55-foot vertical clearance and a 200-foot horizontal clearance between the fender systems at the Okeechobee Waterway. The bridge will cross over a portion of Kiplinger Island owned and preserved by the County. A part of the island was donated to the County in 1993-1994 by The Kiplinger Washington Editors, Inc., and the Kiplinger Foundation, Inc. Audubon of Martin County owns another part of the island. The transfer of title to the County does not include any restriction on the use of the island for conservation purposes only. Documentation submitted at hearing refers to a "two hundred foot wide road right-of-way" easement that the bridge will cross and allows the County to designate where on the island parcel such an easement would be. Therefore, spanning the bridge over a portion of the island owned by the County is clearly permissible. The Project also includes the roadway transition and widening/reconstruction of (a) County Road 714 from the beginning of the Project to Mapp Road from 2-lane to a 4-lane divided roadway; (b) Southwest 36th Street from Mapp Road to the beginning of the bridge from a 2-lane rural roadway to a 4-lane divided roadway with wide roadway swales; and (c) Kanner Highway (along Indian Street) from a 4-lane to a 6-lane divided urban roadway. Drainage improvements on both sides of the St. Lucie River are associated with the roadway construction. DOT proposes to provide both on-site and off-site mitigation for wetland and surface waters impacts pursuant to a mitigation plan approved by the District. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. Besides these rules, certain related BOR provisions which implement the rules must also be considered. The conditions for issuance primarily focus on water quality, water quantity, and environmental criteria and form the basis of the District's ERP permitting program. The parties have stipulated that the Project either complies with the following rule provisions or they are not applicable: Rules 40E-4.301(1)(a), (b), (g), (g), (h), and (k), and 40E- 4.302(1)(a)3. and 6. All other provisions remain at issue. Where conflicting evidence on these issues was submitted, the undersigned has resolved all evidentiary conflicts in favor of the Applicants and District. Based on the parties' Stipulation, the following provisions in Rule 40E-4.301(1) are in dispute and require an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; will not cause adverse secondary impacts to the water resources; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; These disputed criteria are discussed separately below. Surface Water Storage and Conveyance Rule 40E-4.301(1)(c) requires that an applicant provide reasonable assurances that a proposed activity will not cause adverse impacts to existing surface water storage and conveyance capabilities. Through unrefuted evidence, this requirement was shown to be satisfied. The evidence also establishes that the surface water in and around the Project will actually improve if the Project is constructed as permitted. Further, it will create improved and upgraded surface water management and treatment in areas that now lack features such as swales, retention/detention ponds, curbs and gutters, and improve the overall surface water storage and conveyance capabilities of the Project and surrounding areas. In its current pre-development condition, flooding has occurred in certain areas adjacent to and within the Project area due to poor conveyance, low storage volume, and high tailwater conditions that result from high tides. The Project will remedy historic flooding issues in the Old Palm City area which lies adjacent to a portion of the Project alignment. Surface water runoff will be captured, controlled, and treated by a system of swales, weirs, and retention/detention facilities for pretreatment prior to discharging into the South Fork of the St. Lucie River. Reasonable assurances have been given that existing surface water storage and conveyance capabilities will not be adversely affected. Value of Functions to Fish, Wildlife, and Species Rule 40E-4.301(1)(d) requires that an applicant provide reasonable assurances that a proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. BOR Section 4.2.2 further implements this provision. For the following reasons, the rule and BOR have been satisfied. The evidence shows that the existing functions to fish and wildlife were assessed and analyzed by a number of federal and state fish and wildlife agencies. There were extensive review and site inspections by the District, DOT, United States Fish and Wildlife Service, United States Army Corps of Engineers, and National Marine Fisheries Commission to assess the existence of, and potential impact on, fish and wildlife that may result from the Project. These studies revealed that while portions of the South Fork of the St. Lucie River provide potential habitat for aquatic or wetland-dependent or threatened species of special concern, no nesting or roosting areas within the vicinity of the Project were observed. The evidence further supports a finding that "other surface waters" over and under the Project will not receive unacceptable impacts due to their current condition, the detrimental influences of Lake Okeechobee discharges, and tidal impacts. Many of the wetlands to be impacted by the Project were shown to have been impacted by historic activities, and they provide diminished functions to fish and wildlife. The wetland functions were assessed through the Uniform Mitigation Assessment Methodology (UMAM). The UMAM is a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions would be reduced by a proposed project, and the amount of mitigation necessary to offset that loss. Detailed UMAM assessments were prepared by the Applicants and the District. They demonstrate that while certain functional units will be lost, they will be fully offset by the proposed mitigation. No credible evidence to the contrary was presented. Water Quality of Receiving Waters Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that a project will not adversely affect the quality of receiving waters such that State water quality standards will be violated. BOR Section 4.2.4 implements this rule and requires that "reasonable assurances regarding water quality must be provided for both the short term and long term, addressing the proposed construction, . . . [and] operation of the system." The receiving water body is the South Fork of the St. Lucie River, which is designated as an impaired water body. The evidence establishes that the Applicants will avoid and minimize potential short-term impacts to water quality by using silt screens and turbidity barriers, and implementing other best management practices to contain turbidity during construction of the Project. They will also use a temporary trestle rather than barges in the shallow portions of the South Fork to avoid stirring up bottom sediments. Finally, a turbidity monitoring plan will be implemented during construction and dewatering activities for all in-water work. All of these construction techniques will minimize potential impacts during construction. The evidence further establishes that water quality standards will not be violated as a result of the Project. In fact, in some cases water quality will be enhanced due to the installation and maintenance of new or upgraded surface water management features in areas where they do not exist or have fallen into disrepair. Over the long term, the Project is expected to have a beneficial effect on water quality. By improving existing surface water management and adding new surface water treatment features, the Project will provide net improvement to water quality. Wetland Delineation and Impacts The Project includes unavoidable impacts to wetlands and other surface waters. A total of 18.53 acres of wetlands and other surface waters within the Project site will be impacted by the Project, including 3.83 acres of wetlands that will be directly impacted and 14.7 acres of wetlands and other surface waters that will be secondarily impacted. The delineated wetlands are depicted in the Staff Report as wetlands 2a, 19a, 19b, 22, 25-29, 30a, 30b, and 30c, with each having a detailed UMAM assessment of its values and condition. (Impacts to wetland 25 are not included in this Project because they were accounted for in a separate permit proceeding.) Using a conservative assessment and set of assumptions, the District determined that, with the exception of wetlands 19a, 19b, 22, and 27, all wetlands would be impacted by the Project. However, the wetlands that would be impacted suffer from varying historical adverse impacts that have compromised the functions and values they provide to fish, wildlife, and species. This is due to their proximity to urban development, vegetative connectivity, size, historic impacts, altered hydroperiod, and invasive plant species. Likewise, even though the wetlands to be impacted on Kiplinger Island provide certain resting and feeding functions for birds, the value of these functions is comparatively lower than other wetlands due to the presence of invasive species and lack of management. The preponderance of the evidence supports a finding that the Applicants provided reasonable assurances that the Project will not cause adverse impacts to fish, wildlife, or listed species. See Fla. Admin. Code R. 40E-4.301(1)(d). Secondary Impacts Rule 40E-4.301(1)(f) and BOR Sections 4.1.1(f) and 4.2.7. require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources, both from a wetlands and water quality standpoint. Secondary impacts are those that occur outside the footprint of the project, but which are very closely linked and causally related to the activity to be permitted. De minimis or remotely-related secondary impacts, however, are not considered unacceptable. See § 4.2.7.(a). There will be secondary impacts to 6.83 acres of freshwater wetlands and 7.87 acres of mangroves, or a total of 14.7 acres. To address these secondary impacts, the Applicants have established extensive secondary impact zones and buffers along the Project alignment, which were based in part on District experience with other road projects and another nearby proposed bridge project in an area where a State Preserve is located. While Petitioners' expert contended that a 250-foot buffer on both sides of the roadway's 200-foot right-of-way was insufficient to address secondary impacts to birds (who the expert opines may fly into the bridge or moving vehicles), the greater weight of evidence shows that bird mortality can be avoided and mitigated through various measures incorporated into the Project. Further, the bird mortality studies used by the expert involved significantly different projects and designs, and in some cases involved projects outside the United States with different species concerned. Engineering and Scientific Principles Rule 40E-301(1)(i) requires that an applicant give reasonable assurance that a project "be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Unrefuted evidence establishes that the proposed system will function and be maintained as proposed. Financial, Legal and Administrative Capability Rule 40E-4.301(1)(j) requires that an applicant give reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms of the permit. The evidence supports a finding that Applicants have complied with this requirement. Elimination and Reduction of Impacts Before establishing a mitigation plan, Rule 40E- 4.301(3) requires that an applicant implement practicable design modifications to eliminate and reduce wetland and other surface water impacts. In this case, there are unavoidable, temporary wetland impacts associated with the construction of the Project, as well as unavoidable wetland impacts for direct (project footprint), secondary, and cumulative impacts of the Project. The record shows that the Applicants have undertaken extensive efforts to eliminate and reduce wetland and other surface water impacts of the Project. For example, DOT examined and assessed several innovative construction techniques and bridge designs to eliminate and avoid wetland impacts. To eliminate and reduce temporary impacts occurring during construction, DOT has reduced the effect of scour on the pier foundation and reduced the depth of the footing to minimize the amount of excavation on the mangrove island. Also, during construction, the contractor is prohibited from using the 200- foot right-of-way on the mangrove island for staging or stockpiling of construction materials or equipment. The majority of the bridge width has been reduced to eliminate and avoid impacts. Also, the Project's alignment was adjusted to the north to avoid impacts to a tidal creek. Reasonable assurances have been given that all practicable design and project alternatives to the construction and placement of the Project were assessed with no practicable alternatives. Public Interest Test Besides complying with the requirements of Rule 40E- 4.301, an applicant must also address the seven factors in Rule 40E-4.302(1)(a)1.-7., which comprise the so-called "public interest" test. See also § 373.414(1)(a), Fla. Stat. In interpreting the seven factors, the District balances the potential positive and negative effects of a project to determine if it meets the public interest criteria. Because Petitioners agree that factors 3 and 6 of the rule are not at issue, only the remaining five factors will be considered. For the following reasons, the Project is positive when the criteria are weighed and balanced, and therefore the Project is not contrary to the public interest. Public Health, Safety, and Welfare The Applicants have provided reasonable assurance that the Project will not affect public health, safety, and welfare. Specifically, it will benefit the health, safety, and welfare of the citizens by improving traffic conditions and congestion, emergency and hurricane evacuation, and access to medical facilities. In terms of safety, navigation markers are included as part of the Project for safe boating by the public. See Fla. Admin. Code R. 40E-4.302(1)(a)1. Conservation of Fish and Wildlife The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The mitigation projects will offset any impacts to fish and wildlife, improve the abundance and diversity of fish and wildlife on Kiplinger Island, create mangrove habitat, and add to the marine productivity in the area by enhancing water quality. See Fla. Admin. Code R. 40E-302(1)(a)2. Fishing or Recreational Values The Project has features that allow for pedestrian and bicycle utilization and observation areas which should enhance recreational values. The Old Palm Bridge, approximately one mile north of the Project, has had no adverse impact on the fishing recreation along the South Fork of the St. Lucie River. Navigation will not be affected due to the height and design of the new bridge. Finally, the bridge is expected to be a destination for boating, kayaking, fishing, and bird watching. See Fla. Admin. Code R. 40E-4.302(1)(a)4. Whether the Activity is of a Permanent Nature The parties have stipulated that the Project is permanent in nature. No future activities or future phases of the project are contemplated. Temporary and permanent impacts are all being fully mitigated. See Fla. Admin. Code R. 40E- 4.302(1)(a)5. Values of Functions Being Performed in Affected Areas Due to historic impacts to the areas affected by the Project, the current condition is degraded and the relative value of functions is minimal. Although Kiplinger Island will have temporary impacts, that island is subject to exotic species and has no recreational use or access by boaters or members of the public. The Applicants propose mitigation which will improve and enhance these wetland functions and values in the areas. See Fla. Admin. Code R. 40E-4.302(1)(a)7. Summary The evidence supports a finding that the Project is positive as to whether it will affect the public health, safety, welfare, or property of others; that the Project is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the Project is positive as to conservation of fish, wildlife, recreational values, marine productivity, permanency, and current values and functions. When weighed and balanced, the Project is not contrary to the public interest. Cumulative Impacts Rule 40E-4.302(1)(b) requires that an applicant give reasonable assurance that a project will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in BOR Sections 4.28 through 4.2.8.2. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. An analysis is geographically based upon the drainage basins described in BOR Figure 4.4.1. Petitioners' contention that Figure 4.4.1 is inaccurate or not representative of the basin in which the Project is located has been rejected. In this case, the North St. Lucie Basin was used. To assess and quantify any potential unacceptable cumulative impacts in the basin, and supplement the analyses performed by the Applicants, the District prepared a Basin Map that depicted all the existing and permitted wetland impacts as well as those wetlands under some form of public ownership and/or subject to conservation restrictions or easements. The District's analysis found that the wetlands to be mitigated were of poor quality and provided minimal wildlife and water quality functions. Cumulative impacts from the Project to wetlands within the basin resulted in approximately a four percent loss basin-wide. This is an acceptable adverse cumulative impact. Therefore, the Project will not result in unacceptable cumulative impacts. Mitigation Adverse impacts to wetlands caused by a proposed activity must be offset by mitigation measures. See § 4.3. These may include on-site mitigation, off-site mitigation, off- site regional mitigation, or the purchase of mitigation credits from mitigation banks. The proposed mitigation must offset direct, secondary, and cumulative impacts to the values and functions of the wetlands impacted by the proposed activity. The ability to provide on-site mitigation for a DOT linear transportation project such as a bridge is limited and in this case consists of the creation of mangrove and other wetlands between the realigned St. Lucie Shores Boulevard and the west shore of the St. Lucie River, north and south of the proposed bridge crossing. BOR Section 4.3.1.2 specifically recognizes this limitation and allows off-site mitigation for linear projects that cannot effectively implement on-site mitigation requirements due to right-of-way constraints. Off-site mitigation will offset the majority of the wetland impacts. Because no single on-site or off-site location within the basin was available to provide mitigation necessary to offset all of the Project's impacts, DOT proposed off-site mitigation at two established and functioning mitigation areas known as Dupuis State Reserve (Dupuis), which is managed by the County and for which DOT has available mitigation credits, and the County's Estuarine Mitigation Site, a/k/a Florida Oceanographic Society (FOS) located on Hutchinson Island. Dupuis is outside the North St. Lucie Basin and was selected to offset direct and secondary impacts to freshwater wetlands. That site meets the ERP criteria in using it for this project. The FOS is within the North St. Lucie Basin and was selected to offset direct and secondary impacts to estuarine wetlands. Like Dupuis, this site also meets the ERP criteria for the project. The preponderance of the evidence establishes that the on-site and off-site mitigation projects fully offset any and all project impacts, and in most instances before the impacts will actually occur. Sovereign Submerged Lands and Heightened Public Concern Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. For purposes of granting a public easement to the Applicants, the District determined that the Project is not contrary to the public interest and that all requirements of the rule were satisfied. This determination was not disputed. The only issue raised by Petitioners concerning the use of submerged lands is whether the application should have been treated as one of "heightened public concern." See Fla. Admin. Code R. 18-21.0051(5). If a project falls within the purview of that rule, the Board of Trustees of the Internal Improvement Trust Fund (Board), rather than the District, must review and approve the application to use submerged lands. Review by the Board is appropriate whenever a proposed activity is reasonably expected to result in a heightened public concern because of its potential effect on the environment, natural resources, or controversial nature or location. Id. In accordance with established protocol, the ERP application was sent by the District to DEP's review panel in Tallahassee (acting as the Board's staff) to determine whether the Project required review by the Board. The panel concluded that the Project did not rise to the level of heightened public concern. Evidence by Petitioners that "many people" attended meetings and workshops concerning the Project over the last 20 years or so is insufficient to trigger the rule. Significantly, except for general project objections lodged by Petitioners and Audubon of Martin County, which did not include an objection to an easement, no adjacent property owner or other member of the public voiced objections to the construction of a new bridge. Revised Staff Report On October 20, 2010, the District issued a Revised Staff Report that merely corrected administrative errors or information that had been previously submitted to the District. Contrary to Petitioners' assertion, it did not constitute a material change to the earlier agency action either individually or cumulatively. Therefore, it was properly considered in this proceeding. Letter Modifications The Letter Modifications were used as a mechanism to capture minor alterations made to previously issued permits for Kanner Highway and Indian Street. Neither Letter Modification is significant in terms of water quality, water quantity, or environmental impacts. Both were issued in accordance with District rules and should be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application Nos. 091021-8, 100316-7, and 100316-6. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2010. COPIES FURNISHED: Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Jeffrey W. Appel, Esquire Ray Quinney and Nebeker, P.C. 36 South State Street, Suite 1400 Salt Lake City, Florida 84111-1401 Bruce R. Conroy, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 John J. Fumero, Esquire Rose, Sundstrom & Bentley, P.A. 950 Peninsula Corporate Circle Suite 2020 Boca Raton, Florida 33487-1389 Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road Mail Stop 1410 West Palm Beach, Florida 33406-3007
The Issue Schofield Corporation of Orlando has applied to the Department of Environmental Regulation for a permit to construct and operate a Class III trash/yard trash landfill in Orange County, Florida. The issues are whether the applicant is entitled to the permit and, if so, what conditions should attach. Also at issue is Schofield Corporation's motion for attorney's fees and costs, pursuant to Section 403.412(2)(f), F.S.
Findings Of Fact The applicant, Schofield Corporation of Orlando (Schofield), owns the proposed landfill site and existing permits for the site. The proposed site is located in West Orange County, southwest of the intersection of State Road 545 and Schofield Road on the west half of the northwest quarter of section 32, township 23 south, range 27 east, comprising approximately sixty acres within a larger eighty-acre parcel. In some undetermined distant past the site was cultivated in citrus. It is currently being excavated as a borrow pit. The materials proposed to be placed in the landfill include trash, yard trash, construction and demolition debris and clean debris, as defined in DER Rule 17-701.020, F.A.C. The northern half of the site is flat and will be used first for the composting operation. The southern excavated portion of the site will receive the permitted fill material until it is flattened. Then, the two functions will alternate; the composting will occur on the south, and the north end will be excavated to receive fill. The proposed facility will be operated by Chambers Corporation, a nationally recognized waste management company with approximately 20 years of experience in solid waste management. The landfill site will be completely fenced, with a gate entrance mid-site between the landfill and compost area. The gate will be locked when the facility is not in operation, and will be patrolled by security personnel 24 hours a day. "Spotters", or inspectors will be employed to examine incoming waste loads at the gate, from a high gantry, and at the place where the waste is deposited. The loads will be monitored by a television camera, and all haulers will be under contract. The landfill will not accept loads from trucks coming off the road looking for a place to dump. Receptacles will be maintained on site to receive errant non-permitted waste that is found in a load, and that waste will be properly disposed of elsewhere. Schofield has several permits related to its proposed operation. These include a type III landfill permit from Orange County, a compost facility permit from DER, a general construction and demolition debris landfill permit from DER, a surface water management permit from the South Florida Water Management District, and a permit to excavate or mine from the Florida Department of Natural Resources. Schofield also has a contract to receive yard waste from Orange County. The initial term of contract requires at least ten percent of the yard waste to be composted or recycled, with the percentage amount to be renegotiated in subsequent contract renewals. In the hierarchy of landfills, DER considers Class III the least environmentally sensitive. Problems with unauthorized waste and with water quality occur more frequently with Class I landfills, defined as accommodating more than twenty tons a day of residential garbage. In this case DER has proposed to grant Schofield its Class III permit without the requirement of a bottom liner or a leachate or gas control system because of the nature of the waste that will be accepted and because of the rigorous controls, described above, to avoid receiving unauthorized or hazardous waste. The Petitioners are an individual and a homeowners' association representing a residential area approximately a half mile south of the proposed site. Petitioners contend that the applicant's data is insufficient to provide reasonable assurances that water quality standards will not be violated. Petitioners contend that the landfill, if approved, should be required to have a liner to prevent leachate from polluting the groundwater. They further contend that the groundwater monitoring plan submitted by the applicant is inadequate to detect vertical movement of contaminated leachate into the Floridan aquifer, a major source of water supply in Orange County. Hydrogeology The site of the proposed landfill is within a high recharge area. Water percolates rapidly though the soil, moving downward into the aquifer, and laterally off site. The site is considered Karst terrain, underlined with limerock. There is evidence of relic sinkholes, thousands of years old, but there is a low probability of future open sinkhole development. The geology in the area of the site provides adequate structural support for the proposed facility. An aquifer is generally defined as a unit of material which contains water and can give up a sufficient amount of yield to provide some productive flow for pumpage. Below the site there are two aquifers: the shallow water table, or surficial aquifer, containing clean well-drained fine sands, about 70 feet down; and the Floridan, primarily limestone, encountered at a depth of approximately 115 feet. The two are separated by a confining layer of less permeable sands and clay. Flow in the Floridan at the site is primarily from the west to east. Flow in the surficial is also generally from west to east, but the Petitioners theorize, and have presented competent supporting evidence, that there are fissures in the confining layer, allowing some internal drainage within the site, causing surficial water to flow vertically into the Floridan, rather than laterally off-site in an eastward direction. Based on recent data taken from two piezometers installed near the middle of the site, the applicant's hydrogeologist, James Golden, concedes that "mounding" exists along the eastern boundary of the site, reflecting some flow westerly back into the interior of the site. Petitioners' theory regarding internal draining of the site is based in part on data as to groundwater elevation. Groundwater elevation or high groundwater table is the elevation at which water stands on a continuous surface under the site. Jammal and Associates is a consultant firm which has done field studies of this and neighboring sites in the past, for various purposes. Some open bore readings taken by Jammal and Associates in a 1983 study for the Orange County Rapid Infiltration Basin project indicate groundwater table levels on site up to 126 feet, National Geodetic Vertical Data (NGVD). Open bore readings are less reliable than cased hole readings; due to collapses within the hole, artificially high readings are sometimes obtained. Data from the applicant's consultants reveals groundwater tables at 96-98 NGVD. This data was most recently obtained in December 1991 from sealed and surveyed piezometer casings, but not from the area of the site where Jammal's higher readings were obtained. Although it may be conjectured that Jammal's high readings are anomalous, additional sealed borings need to be obtained before the anomaly is confirmed. Groundwater elevations are significant also to determine the depth to which the landfill may be excavated. Based on its December 1991 readings, obtained after the application for permit was filed, the applicant agreed to raise the proposed bottom of the landfill to approximately five feet above the level of the estimated high (wet weather) groundwater table in the area. Water Quality and Monitoring Specific conditions of the proposed permit include DER's requirements that Class GII water quality standards be met at the boundary of the zone of discharge, in accordance with Rule 17-3, F.A.C. The zone of discharge for this facility is a three-dimensional volume defined in the vertical plane as the top of the ground to the base of the most surficial aquifer, and horizontally 100 feet from the edge of the waste-filled area, or the property boundary, whichever is less. The groundwater monitoring plan proposed by the applicant includes one upstream monitoring well on the west side of the site and five wells along the east side of the site, with an additional well at the south, between the project and the Petitioners' residential area. The wells extend down into the upper zone of the surficial aquifer, but not into the deeper limestone Floridan. The downstream wells should detect any contamination in the surficial aquifer flowing from west to east at the zone of discharge. However, they will not pick up contamination draining internally within the site and into the Floridan. Such contamination is possible, even though leachate from Class III- type wastes is expected to be relatively benign. Volatile organic carbons (VOCs) have not typically been a problem in Class III landfills, unless those landfills were previously operated as Class I sites. Secondary drinking water standards for certain metals have been violated at some Class III sites, but such violations are often related to the problem of sampling newly-installed wells. From DER records, Petitioners presented evidence of consistent drinking water quality standard violations in Class III landfills. That such violations can occur in Class III landfills is clearly established. It is not so clear that such violations will occur in this facility, given the proposed controls on load content. However, even acceptable materials will not avoid the production of leachate or gas. Within demolition waste there are chemically bound components which are inseparable, for example, creosote and other preservatives, glues, paints, resins, varnishes and stains. The lignin, tannins and volatile organic acids which are produced when wood decomposes alter the pH of the groundwater. As the water becomes more acidic, heavy metals that were typically bound up in the waste or in the soil, are released in soluble form and travel with the water. The decomposition process occurring in the construction and demolition waste is enhanced by the addition of yard trash which becomes the food source for the biodegradation. Summary of Findings and Proposed Permit Conditions If, as applicant suggests, all groundwater moves primarily from west to east within the site, given the proposed operational controls and the proposed monitoring plan, reasonable assurances have been provided that water quality standards will not be violated beyond the zone of discharge. That is, any contamination likely to occur will be contained within the surficial aquifer and within the 100 feet or property line horizontal boundary. Transmissivity of the surficial aquifer is low enough to allow mixing of the leachate before it reaches the zone of discharge. The Petitioners, however, have presented credible evidence sufficient to question the groundwater flow premise and sufficient to require additional conditions on the permit. If leachate reaches the Floridan through fissures in the confining layer, it will move rapidly off site. In its proposed recommended order DER has suggested additional permit conditions and in its adoption of the proposed recommended order, the applicant has accepted those additional permit conditions. Those permit conditions recognize the fact that data presently provided by the applicant is insufficient to overcome the evidence by Petitioners as to the hydrogeological characteristics of the site with the possibility of internal drainage and vertical intrusion of contaminated water into the Floridan aquifer. The proposed recommended order provides this finding: ...that the ground water monitoring plan as proposed in this proceeding is adequate, provided that there be added to the permit conditions that the permittee conduct appropriate water table testing with cased piezometers during the next wet season to determine whether ground water flow is internal within the site and therefore not intercepted by the present ground water monitoring wells. The permittee shall consult with DER and get approval for the location and construction of these wells prior to their installation. The results shall be immediately submitted to the DER. The ground water monitoring requirements should be modified if necessary at that time pursuant to Rule 17-28.700(5) to assure proper monitoring at this site. (DER proposed Recommended Order, p. 17) The ground water monitoring plan modification suggested by DER is that deeper monitoring wells, into the Floridan aquifer, be required if the additional testing reveals the likelihood of internal on-site ground water drainage. These conditions are still inadequate since they lack specificity with regard to the extent of testing, the location and construction of the wells, and the amendments to the monitoring program to be required if internal drainage is confirmed. Moreover, the proposed conditions fail to address the possibility that the permit should require a liner for the landfill if the data to be obtained reveals the likelihood that contaminates will penetrate into the groundwater of the Floridan. Monitoring programs, however effective, only predict or detect problems; they do not remediate them. Groundwater contamination by landfills is not quickly and easily reversed. Unlike discharges from other facilities such as spray application or deep well injection, the leachate from a landfill is not "turned off". Without the additional data which all parties agree is needed, it is impossible to determine what additional conditions, if any, should be required or what amendments, if any, need to be made to the applicant's proposed monitoring plan.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Environmental Regulation issue its Final Order denying the application for Class III land fill permit. DONE AND RECOMMENDED this 17th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraph 1. Adopted in substance in paragraph 10. 3.-11. Rejected as unnecessary. 12.-23. Rejected as argument or summary of testimony, rather than findings of fact. 24. Rejected as unnecessary. 25.-30. Rejected as argument or summary of testimony, rather than findings of fact. 31. Rejected as unnecessary. 32.-41. Rejected as argument or summary of testimony, rather than findings of fact. Rejected as unnecessary. Adopted in substance throughout the recommended findings. 44.-50. Adopted in Preliminary Statement and paragraph 4. 51. Rejected as unnecessary. 52.-53. Adopted in paragraph 2. 54.-55. Rejected as statement of testimony rather than finding of fact. Adopted in paragraph 3. Rejected as unnecessary. 58.-97. Rejected as argument or statement of testimony, rather than findings of fact. Subparts a), b), c) and e) are rejected as unsupported by competent evidence. The evidence suggests that violations might occur and that insufficient data has been produced. Subpart d) is adopted, by implication in paragraph 18. 99.-101. Adopted in summary in paragraph 20. Respondent's Proposed Findings of Fact Addressed in Preliminary Statement. Adopted in paragraphs 1, 2 and 5. 3.-4. Adopted in paragraph 4. Adopted in summary in paragraph 11. Adopted in paragraph 13. Rejected as unnecessary or irrelevant, given the stipulation related to Section 403.412, F.S. standing. Rejected as cumulative. Adopted in paragraph 10. Adopted in paragraph 9. Adopted in substance in paragraph 9. 12.-13. Adopted in paragraph 13. Adopted in substance in paragraph 16. Rejected as unsupported by the evidence. If internal drainage is shown to exist, conditions other than additional monitoring wells may be required. Adopted in paragraph 17. 17.-18. Adopted in paragraph 3. 19.-21. Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 12. 24.-26. Adopted in general in paragraph 14. 27. The unlikelihood that unauthorized waste will be dumped is adopted in paragraph 3. Whether there will be a violation of ground water quality standards at the zone of discharge was not established, given the need for additional data on internal draining. COPIES FURNISHED: Thomas B. Drage, Jr., Esquire P.O. Box 87 Orlando, FL 32802 Irby G. Pugh, Esquire 218 Annie Street Orlando, FL 32806 Douglas H. MacLaughlin Asst. General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether the Department of Health (Department or DOH) should fine the Petitioner, Jeffery Benefield, $500 and require him to move the drainfield of his onsite sewage disposal system so that no part of it is within ten feet of the potable water line of his neighbors, the Intervenors, Robert and Wanda Schweigel.
Findings Of Fact The Petitioner's home at 10920 Lake Minneola Shores Road (Lake County Road 561-A) was built in 1977. It included an onsite septic tank and drainfield sewage disposal system. On March 31, 2003, the Petitioner personally applied for a permit to repair his existing sewage disposal system by replacing the drainfield. His application did not identify any potable water lines. Department personnel evaluated the site and calculated system specifications, and the Department issued a construction permit on April 3, 2003, based on the estimated size of the existing system. To replace the existing drainfield and meet specifications, 375 square feet of drainfield was required. However, the Petitioner wanted to add 125 square feet to what was required by the specifications, which is acceptable so long as required setbacks are maintained. The Petitioner's drainfield was replaced by a licensed contractor on April 29, 2003. Some work may have been done the following day to complete the job, but it appears that the contractor called for the final inspection on April 29, 2003. On inspection, it was clear that the new drain line closest and (like the other three) parallel to the property line was less than ten feet from a water line, riser, and spigot on the neighboring property, which was owned by Robert and Wanda Schweigel. Specifically, the closest of the new drain lines was estimated to be just five feet from the Schweigels' water line, riser, and spigot. (The next closest was just under ten feet from the Schweigels' water line, riser, and spigot.) As a result, the Department disapproved the installation. The Petitioner disputed the disapproval, initially contending that the Schweigels' water line, riser, and spigot did not convey potable water. It was decided that the new drainfield should be covered while pending a decision as to whether the water line was potable. By the end of July 2003, the Department decided that the Schweigels' water line was indeed potable. In that approximate time frame, the Petitioner's contractor offered to pay to have the Schweigels' water line "sleeved" to a distance at least ten feet from the nearest portion of the Petitioner's drainfield.2 He believed that solution would be much simpler and less costly than moving the Petitioner's drainfield to a distance at least ten feet from any part of the Schweigels' potable water line. This alternative was presented to the Schweigels in that approximate timeframe, but they refused (and continue to refuse.) In August 2003, the Petitioner took the position that, regardless whether the Schweigels' water line was potable, the Petitioner's new drainfield was in the same location as the existing drainfield, and the part of the water line closest to the new drainfield (i.e., the part including the riser and spigot) was not there until after the middle of April 2003 and was recently installed either just before or while the Petitioner's new drainfield was being installed. The evidence was not clear as to the configuration and precise location of the drain lines in the Petitioner's original drainfield. However, it appears to have had three drain lines emanating from the septic tank, starting in the direction of the Schweigels' property and then curving away in the direction of Lake Minneola, which is behind the Petitioner's and the Schweigels' properties, before terminating. The replacement drainfield had pipe emanating from the septic tank and running towards the Schweigels' property line before making a 90-degree turn towards the lake before connecting to the middle of a header pipe. Connecting to the header pipe are four equally-spaced drain lines, one on either end of the header pipe and two in between, that are perpendicular to the header pipe and parallel to each other and to the Schweigels' property line (and potable water line) and run towards the lake. As indicated, it was not clear from the evidence precisely where all of the old drain lines were located, or how close they got to the Schweigels' property (and potable water line.) However, it does not appear that they got as close as two of the four new drain lines in the replacement system. See Petitioner's Exhibits 13 and 21. There was conflicting evidence as to when the Schweigels' potable water line was installed. It is clear from the evidence that there are now three "T's" off the water line from the potable water source near the street. One "T- off" leads to near the front corner of the house, one leads to the middle of the side of the house, and one leads to near the rear corner of the house. The line then extends past the last "T" to the location of the water riser and spigot. The Petitioner's evidence proved that the water line riser and spigot now within ten feet of the Petitioner's drainfield were not there either in May 1999 or on April 14, 2003. But the Schweigels maintained, and the evidence as a whole was persuasive, that the potable water lines currently in place were installed in 1996 or 1997, but were cut and moved to enable the Schweigels to install footers for construction of a concrete privacy wall in approximately 1999. After installation of the footers, the water line had to be moved several inches closer to the Schweigels' house when replaced, and the "T's" were reconnected to the line. In approximately April 2003, the water line riser and spigot were damaged (the evidence was not clear how) and had to be replaced. The evidence was that the Schweigels got a permit to build their privacy wall but did not get a permit for the plumbing work that was necessary in conjunction with the installation of the footers for the wall. Although it appears from the evidence that a plumbing permit was required, the Schweigels did not think a separate plumbing permit was necessary. It is not found that the Petitioner participated in this proceeding for an "improper purpose"--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order that the Petitioner pay a $500 fine and either: (1) pay the reasonable cost of having the Schweigels' potable water line "sealed with a water proof sealant within a sleeve of similar material pipe to a distance of at least 10 feet from the nearest portion of the system," so long as no portion of the Schweigels' potable water line "within 5 feet of the drainfield shall be located at an elevation lower than the drainfield absorption surface"; or (2) move or relocate his drainfield to meet the setback requirements of the current Rule 64E-6.005(2)(b). DONE AND ENTERED this 15th day of February, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 15th day of February, 2005.
The Issue The issue in this case is whether Respondent KW Resort Utilities Corp. ("KWRU") is entitled to issuance, by Respondent Department of Environmental Protection ("DEP"), of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021 (collectively, the "Permit at Issue"), authorizing the major modification of KWRU's existing permit to operate a domestic wastewater facility located at 6630 Front Street, Stock Island, Florida 33040. The Permit at Issue would authorize the expansion of KWRU's existing domestic wastewater facility and the installation of two additional underground injection wells.
Findings Of Fact The Parties Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Last Stand has challenged the Permit at Issue in this proceeding. Petitioner George Halloran is a natural person residing in Key West, Florida, and is a member of Last Stand. Halloran has challenged the Permit at Issue in this proceeding. Respondent KWRU is a Florida corporation. KWRU is the wastewater utility service provider that owns and operates the Existing Wastewater Facility2/ and is responsible for its design, construction, operation, and maintenance. It is the applicant for the Permit at Issue in this proceeding. Respondent DEP is the state agency charged with administering the domestic wastewater program in Florida pursuant to chapter 403, Florida Statutes, implementing, as applicable, rules codified at Florida Administrative Code Chapters 62-4, 62-302, 62-303, 62-520, 62-528, 62-600, and 62-620, and various industry standards and manuals incorporated by reference into DEP rules. DEP's proposed agency action to grant the Permit at Issue is the subject of this proceeding. Background and Overview Domestic Wastewater Regulation in the Florida Keys The State of Florida has recognized the need to protect the Florida Keys' unique, sensitive environmental resources. To that end, portions of the Florida Keys are designated, pursuant to statute and by DEP rule, as an Outstanding Florida Water ("OFW"). § 403.061(27), Fla. Stat.; Fla. Admin. Code R. 62-302.700(9). The Florida Legislature also designated the Florida Keys an Area of Critical State Concern. § 380.0552, Fla. Stat. A stated purpose of this designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater facilities that meet the requirements of section 403.086(10). Additionally, the Florida Legislature has enacted section 403.086(10), which addresses the discharge of domestic wastewater in the Florida Keys. That statute finds that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. Section 403.086(10) directs that after December 31, 2015, all new or expanded domestic wastewater discharges must comply with the treatment and disposal requirements of the statute and DEP rules. Specifically, domestic wastewater treatment facilities having design capacities greater than or equal to 100,000 gallons per day must provide basic disinfection of the wastewater pursuant to DEP rule and must treat the wastewater to a level of treatment, which, on a permitted annual average basis, produces an effluent that contains no more than the following concentrations of the specified constituents: Biochemical Oxygen Demand ("CBOD5") of 5 milligrams per liter ("mg/L"); Suspended Solids of 5 mg/L; Total Nitrogen, expressed as N of 3 mg/L; and Total Phosphorus, expressed as P of 1 mg/L. Collectively, these effluent standards constitute the "advanced wastewater treatment" ("AWT") standards. Section 403.086(10)(e) also imposes requirements regarding disposal of treated domestic wastewater effluent through underground injection. Section 403.086(10)(e)1. requires Class V injection wells serving domestic wastewater treatment facilities having design capacities of less than one million gallons per day (hereafter "MGD") to be at least 90 feet deep and cased to a minimum depth of 60 feet, or to such greater cased depth and total well depth as may be required by DEP rule. Section 403.086(10)(e)2. requires Class V injection wells serving wastewater treatment facilities with design capacities greater than or equal to 1 MGD, excluding backup wells, to be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by DEP rule. The Existing Wastewater Facility KWRU currently is permitted, pursuant to Permit FLA014591 (the "Existing Permit"), to operate a domestic wastewater facility (the "Existing Wastewater Facility" or "Facility")3/ located at 6630 Front Street, Stock Island, Florida. Stock Island is located immediately east and slightly north of Key West. By way of background, KWRU's domestic wastewater system currently consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and the Existing Wastewater Facility, which treats the wastewater and then sends it either as reclaimed water for reuse as irrigation water at the Key West Golf Club, or for toilet flushing or air conditioning makeup water at other facilities specified in the Existing Permit,4/ or disposes of it as treated effluent through two underground injection wells. No modifications to the collection or transmission systems have been proposed or challenged. Thus, only the proposed modifications to the Existing Wastewater Facility are at issue in this proceeding. The Existing Wastewater Facility serves residential and commercial properties located on Stock Island, Florida, immediately adjacent to Key West in the lower Florida Keys. Specifically, the Facility treats domestic wastewater originating from approximately 1,416 existing residential connections and 216 commercial connections. The commercial connections consist of a convalescent center, a college, restaurants, recreational vehicle parks, an animal clinic, and a hospital. There are no industrial wastewater contributors to the Facility. The Facility includes a Category III, Class C wastewater treatment facility operating under the Existing Permit. It is staffed by a Class C or higher operator for six hours a day, seven days per week, in accordance with the Existing Permit and applicable DEP rules. The Facility has a design capacity and a permitted capacity5/ of .499 MGD annual average daily flow ("AADF") and consists of two treatment trains having capacities of .249 MGD and .250 MGD AADF. These treatment trains are piped together to allow operation of the Facility as a single plant. The Facility was upgraded in the mid-2000s and is capable of treating influent wastewater to AWT. However, as authorized under the Existing Permit, the Facility currently treats domestic wastewater to secondary standards, which do not impose nitrogen or phosphorous limits. Under the Existing Permit and in accordance with section 403.086(10), the Facility is not required to meet AWT standards until January 1, 2016. Vacuum and gravity collection systems collect the domestic wastewater from the properties that KWRU services. Wastewater influent from the collection systems flows through the transmission system to a splitter box at the KWRU property, where it is sent to the Facility for treatment. The Facility contains two treatment trains, each consisting of a bar screen, an equalization tank, an aeration tank, an anoxic zone, a post-aeration basin, a clarifier, a silica sand/river rock filter, and a chlorine contact chamber. The bar screens, which constitute the first step in the treatment trains, remove floatables from the wastewater stream. After passing through the bar screens, the wastewater drops into two equalization tanks. As their name indicates, the equalization tanks smooth out the peaks in wastewater flow to the Existing Wastewater Facility. Specifically, wastewater flows to the Facility in large volumes during two periods each day, morning and evening, corresponding with peak water use by the serviced properties. During these large flow volume periods, the equalization tanks fill up with sewage influent, which is meted out during lower-flow periods for treatment by the Facility. In this manner, the Facility treats roughly the same amount of wastewater per hour, which is key to the steady state operation of, and the reliable treatment of the wastewater by, the Facility. From the equalization tanks, the wastewater is directed to the three-stage bioreactor portion of the treatment process. Microorganisms are utilized at each stage to break down the waste. The first stage of the bioreactor process occurs in the aeration basins. Here, wastewater enters the fine-air zone, where it and the microbes used in this stage of the treatment process come into contact with tiny oxygen bubbles. The microorganisms use the oxygen to oxidize the waste and complete the ammonification of the wastewater. The wastewater then passes through bulkheads to the anoxic zones, where the oxygen level is extremely low. In the anoxic zones, bacteria denitrify, or remove nitrogen from, the wastewater. The wastewater is then sent to the post-aeration basins, where excess carbon is removed through oxidation. Thereafter, the wastewater is sent to the clarifiers, where the microorganisms settle out of the wastewater to form a solid precipitate on the bottom of the tank. The precipitate is plowed into a sump and returned by pump to the bioreactors, where the microorganisms are reused in the activated treatment process. When the microorganisms cease to optimally function in treating the waste, they are culled from the treatment process and sent to a digester, where they oxidize, through the endogenous decay process, to the point that they die and only their endoskeletons remain. Sludge, consisting of the endoskeletons and water, is pumped to a sand filter drying bed. The filtrate water is pumped back through the Wastewater Facility to be reused in the wastewater treatment process, while the dried endoskeletons, which are termed "biosolids," are transported offsite for disposal in a Class I landfill. The treated, clarified wastewater is pumped through sand/rock filters, then to the chlorine contact chambers where it is exposed to a minimum of 15 minutes of chlorine disinfection. As noted above, the Existing Permit authorizes the reuse of reclaimed water for, among other uses, irrigation by land application at the 100.27-acre Key West Golf Club golf course. The golf course irrigation system consists, in part, of two unlined interconnected ponds that do not directly discharge to surface waters6/ and that have a storage capacity exceeding one million gallons. KWRU sends reclaimed water to the golf course through its reclaimed water reuse system only in the quantity required to meet the course's irrigation needs. The Existing Permit imposes a minimum residual chlorine level of 1 mg/L and a maximum of 5 mg/L turbidity for the treated wastewater to be considered reclaimed water that can be reused as irrigation at the golf course or as otherwise authorized in the Existing Permit. If the treated wastewater does not meet these standards, switchover/interlock equipment at the Facility disables the power to the pumps that send the reclaimed water offsite for reuse.7/ At that point, the treated wastewater is considered treated effluent.8/ The effluent fills the effluent wet well and is piped directly to the existing underground injection wells for disposal. Pursuant to the Existing Permit, the effluent is disposed of by gravity flow through two Class V, Group 3, ten- inch underground injection wells bored to a depth of 110 feet and cased to a minimum depth of 60 feet. Collectively, the two injection wells have a maximum permitted capacity of .499 MGD AADF. As authorized by the Existing Permit, the underground injection wells discharge the effluent to Class G-III ground water within the Key Largo Limestone.9/ The underground injection wells are not the primary means of disposal for the treated wastewater, in the sense that they are used to remove effluent from the Facility only if and when reclaimed water is not needed by the golf course or the other receiving facilities, or when the treated wastewater does not meet the required residual chlorine and turbidity limits discussed above. The Existing Permit and the activities authorized thereunder are not at issue in this proceeding. Activities Authorized by the Permit at Issue The Permit at Issue proposes to authorize the construction of a new .350 MGD treatment train, which will increase the design capacity and permitted capacity of the plant from .499 MGD to .849 MGD AADF. The proposed modification of the Existing Wastewater Facility entails the addition of a 90-foot diameter tank containing an influent screen, a 105,554-gallon influent equalization tank, a 163,000-gallon aeration chamber, a 154,725-gallon post-anoxic chamber, a 35,525-gallon re-aeration zone, a 112,062-gallon clarifier, and a 317,950-gallon digester. The sand filters and chlorine contact chambers currently in use will be expanded to accommodate flows from the new treatment train, and the chlorine contact chambers will be changed to liquid bleach feed. The Permit at Issue also proposes to authorize the construction and operation of a new .499 MGD AADF underground injection well system consisting of two new Class V, Group 3 ten- inch wells, drilled to a depth of at least 110 feet and cased to a depth of at least 60 feet, which would discharge effluent to Class G-III ground water within Key Largo Limestone. When placed into service along with the two existing injection wells, the total design capacity and permitted capacity of all four underground injection wells would be .998 MGD AADF.10/ The existing reclaimed water reuse system for the Key West Golf Club or the other receiving facilities currently is authorized for a permitted flow capacity of .499 MGD AADF and a design capacity of 1 MGD AADF. The Permit at Issue would authorize the construction of a new reclaimed water reuse system having a permitted capacity of .849 MGD AADF; however, the design capacity of the system remains 1 MGD AADF, and the amount of reclaimed water sent to the golf course for reuse as irrigation is not being changed by the Permit at Issue from that currently authorized by the Existing Permit. Hereafter, the proposed modifications to the Existing Wastewater Facility that are the subject of the Permit at Issue are referred to as the "Project." The expanded facility resulting from completion of the Project is referred to as the "Expanded Wastewater Facility." The Existing Wastewater Facility treatment trains will be modified to meet the AWT standards as of January 1, 2016. Specifically, an alkalinity control system, a carbon injection system, and an alum injection will be added and certain aspects of the wastewater treatment process will be modified as necessary to meet the AWT standard. The new treatment train proposed as part of the Project will be designed to meet the AWT standards upon operation, which will not occur sooner than 2016. Accordingly, as required by section 403.086(10(d)1., all effluent from the Expanded Wastewater Treatment Facility will meet the AWT standards as of January 1, 2016. As a result of conversion of the wastewater treatment process to AWT, and even assuming all treated effluent is injected down the wells, total nitrogen loading will be decreased from 58 pounds per day to 15.9 pounds per day and total phosphorous loading will be decreased from 14.4 pounds per day to 5.3 pounds per day. This is the case even though the volume of effluent disposed of through the wells may as much as double. Only the activities comprising the Project, which are the proposed to be authorized by the Permit at Issue, are the subject of this proceeding. The Permitting Process The overarching purpose of the wastewater facility permitting process, including permitting of modifications to an existing wastewater facility, is to ensure that the wastewater facility does not discharge wastes to any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such waters. This is accomplished by requiring the facility to be designed, constructed, and operated in accordance with applicable DEP rule standards, which incorporate industry standards. Fla. Admin. Code R. 62- 600.100(1). Similarly, the overarching purpose of the Underground Injection Well System permitting process is to protect the quality of underground sources of drinking water and prevent degradation of the quality of other aquifers adjacent to the injection zone that may be used for other purposes. This is accomplished by requiring underground injection wells to be designed, constructed, and operated in accordance with applicable DEP rule requirements and standards. Fla. Admin. Code R. 62- 528.100(1). The Wastewater Facility or Activity Permit Application Form 1, General Information, and Application Form 2A, Permit for Domestic Wastewater Treatment and Reuse or Disposal Facility, which are adopted by rule, are the forms that must be completed and submitted to DEP to receive authorization to modify existing wastewater facilities or construct new wastewater facilities. This form includes a list of requirements, some (but not necessarily all) of which apply to proposed modification of an existing wastewater facility. The form requires that a Florida- licensed P.E. certify that the engineering features of the project have been designed by the engineer in conformance with the sound engineering principles applicable to such projects, and that, in his or her professional judgment, the facility, when properly constructed, operated, and maintained, will comply with all applicable statutes and the rules. The Application to Construct/Operate/Abandon Class I, III, or V Injection Well System, which is adopted by rule, is the application form that must be completed and submitted to DEP to receive authorization to construct and operate a Class V Injection Well System. This application form includes a list of requirements, some (but not necessarily all) of which apply to a specific underground injection well construction project. The form requires that a Florida-licensed P.E. certify that the engineering features of the injection well have been designed and examined by the engineer and found to conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application. By signing and sealing the application, the P.E. certifies that, in his or her professional judgment, there is reasonable assurance that the injection well, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules. Once the application forms are submitted, DEP permitting staff reviews the applications and determines whether items on the forms and any materials submitted to support those items are incomplete or need clarification. In that event, staff sends the applicant a Request for Additional Information ("RAI"), requesting the applicant to provide additional information to address incomplete or unclear aspects of the application. Once the applicant has provided information sufficient to enable DEP to review the application for issuance or denial of the permit, DEP determines the applications complete and reviews the project for substantive compliance with all applicable statutory and rule permitting requirements. DEP is authorized to issue the permit, with such conditions as it may direct, if the applicant affirmatively provides reasonable assurance, based on the information provided in the application, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of DEP standards or rules proposed in the application. Fla. Admin. Code R. 62-4.070(1). If the applicant fails to provide such reasonable assurance, the permit must be denied. Conversely, if the applicant provides such reasonable assurance, the applicant is legally entitled to issuance of the permit. Engineering Design of the Project KWRU retained Weiler Engineering Corporation to design the proposed modifications to the Existing Wastewater Facility and the new underground injection well (again, collectively referred to as the "Project") and to prepare and submit the applications for the Permit at Issue to DEP. Edward Castle and Christopher Johnson prepared the applications for the Permit at Issue. As the applicant, Johnson signed the application documents as required pursuant to the application form. As the engineer of record, Castle signed and sealed the certifications in the application forms, representing that he was the engineer in responsible charge of preparing the Project's engineering documents. Castle's signature and seal on the application forms for the wastewater treatment facility expansion portion of the Project constitute his representation that he designed and examined the engineering features of the wastewater treatment facility expansion; that these features conform to sound engineering principles applicable to the Project; and that, in his professional judgment, the wastewater treatment facility expansion portion of the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. Similarly, Castle's signature and seal on the application to construct the new underground injection wells constitute his representation that he designed the engineering features of these injection wells; that the injection wells conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that in his professional judgment, there is reasonable assurance that the wells, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules, including the requirement that the effluent discharged through the injection wells meet AWT standards as of January 1, 2016. As previously noted, the design capacity of wastewater treatment portion of the Expanded Wastewater Facility is proposed to be .849 MGD AADF. Castle selected this design capacity based on historic wastewater flows at the Existing Wastewater Facility and foreseeable projected wastewater treatment capacity demand in the future.11/ Specifically, to estimate future capacity demand, Castle considered development agreements, requests for utility service, the existence of scarified property and applicable development density, wetslips, recent property sales, and estimated and proposed in-fill development on Stock Island. He projected residential development wastewater treatment demand based on historic actual flow data from the Monroe County Sanitary Wastewater Master Plan ("Master Plan"), in conformance with the Recommended Standards for Wastewater Facilities, the so- called "Ten States Standards," a wastewater systems design and planning guidance document incorporated by reference in rule 62- 600.300(4). Additionally, Castle applied the estimated sewage flows codified in Florida Department of Health rule 64E-6.008, Table I, System Design Estimated Sewage Flows ("DOH Table I"), to estimate wastewater treatment demand for projected commercial and hotel development uses. Once Castle had projected wastewater capacity demand for residential and hotel/commercial uses at buildout on Stock Island, he factored in an additional 15 percent capacity safety factor to derive the .849 MGD AADF design capacity for the Expanded Wastewater Facility. Castle chose AADF, rather than the maximum monthly average daily flow or three-month average daily flow, as the timeframe for the design capacity based on historical flow amounts to the Existing Wastewater Facility and because of insignificant seasonal variations in historical flows to the Facility.12/ This is because the population on Stock Island contributing flow to the Existing Wastewater Facility is largely comprised of non-seasonal residents and commercial operations.13/ Nonetheless, to ensure the Expanded Wastewater Facility will have adequate capacity to effectively treat wastewater to the required standards during higher flow periods that may result from non- residential seasonal occupancy in the future, Castle assumed year-round, 100 percent occupancy for the projected hotel and commercial development on Stock Island in determining the design capacity for the Expanded Wastewater Facility. Castle estimated a peak hourly flow of 1.273 MGD for the Expanded Wastewater Facility. This figure estimates the maximum flow through the facility on an hourly basis specifically to take into account the diurnal variability of wastewater flow entering the facility. By definition, the peak hourly flow is a maximum hourly flow rather than the sustained flow or volume into or through the facility. The projected maximum hourly flow of 1.273 MGD, which was determined by multiplying the annual average daily flow by a peaking factor of 1.5, is an estimate of the maximum hourly flow wastewater coming into the Expanded Wastewater Facility's equalization tanks. Importantly, it is not the volume of wastewater flow, on an annual average daily basis, that will leave the facility's equalization tanks and flow through the facility's treatment process. Put another way, the 1.273 MGD peak hourly flow is not the Expanded Wastewater Facility's design capacity. As previously noted, the permitted capacity of the wastewater treatment portion of the Expanded Facility also would be .849 MGD AADF. The permitted capacity is the amount, on an annual average daily flow basis, that the wastewater treatment portion of the Expanded Wastewater Facility is authorized to treat and discharge. This metric establishes an absolute limit, on an annual average daily basis, on the quantity of wastewater that can be treated by, and discharged from, the Expanded Wastewater Facility. Also as discussed above, once the two new underground injection wells are installed, the total design capacity of the four wells at the Expanded Wastewater Facility will be .998 MGD AADF. The two new injection wells are being added to ensure adequate disposal capacity for the .849 MGD permitted capacity and, importantly, to accommodate the peak hourly flow. The reclaimed water reuse system currently has an authorized design capacity of 1 MGD AADF, and this is not being changed by the Project, although the permitted capacity is being increased to .849 MGD AADF. As discussed in greater detail below, neither the design capacity nor the permitted capacity of the reuse system is a function of the irrigation application rate per acre of the golf course, and neither represent the amount of irrigation applied to the golf course per day. In determining the design capacity for the Expanded Wastewater Facility, Castle considered wastewater capacity demand for the facility through the year 2020, rather than over a 20- year period. This is because buildout of the properties on Stock Island that will contribute flow to the facility is reasonably projected to occur between 2018 and 2020. After buildout, there will be no additional properties being developed to contribute additional wastewater flows to the Expanded Wastewater Facility. The credible, persuasive evidence establishes that the proposed design capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62-600.200(19) and other pertinent provisions in chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence also establishes that the proposed permitted capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62- 600.200(62) and other pertinent provisions of chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence further establishes that the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. The credible, persuasive evidence also establishes that the underground injection wells, as designed, conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that there is reasonable assurance that the wells, when properly constructed, maintained, and operated, will discharge effluent in compliance with all pertinent statutes and rules, including the requirement that the effluent discharged down the injection wells meet AWT standards as of January 1, 2016. DEP Review and Proposed Issuance of the Permit at Issue The wastewater treatment facility and underground injection well applications for the Project were submitted to DEP on April 15, 2014. During DEP's review of the applications for the Project, the question arose whether the 1.273 MGD peak hourly flow stated in the permit application would trigger the so-called "deep well" requirement in section 403.086(10)(e)2. that the underground injection wells be cased to a minimum depth of 2,000 feet. DEP ultimately concluded that the term "design capacity," as used in the statute, referred to an average daily flow rate14/ over a specified period of time——here, a year——for the Expanded Wastewater Facility, rather than the transient peak hourly flow for the facility. Thus, the Expanded Wastewater Facility does not have a design capacity exceeding 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Expanded Wastewater Facility. DEP permit review staff issued one RAI, and KWRU timely provided the requested information. Upon receipt and review of KWRU's response to the RAI, DEP deemed the application for the Permit at Issue complete. DEP staff reviewed the permit applications for compliance with applicable statutory and rule requirements and standards. DEP's review does not entail re-designing or re- engineering the project or questioning the design engineer's reasonable exercise of judgment on design matters, as long as the project is accurately designed based on sound engineering principles and will operate in accordance with the applicable permitting requirements and standards. Thus, as a matter of practice, DEP relies, to a large extent, on the design engineer's certification that the system is accurately designed according to sound engineering principles——as is appropriate and authorized pursuant to the certification provisions on the application forms, rule 62-4.050(3), and chapter 471 and Florida Board of Engineering rules.15/ Gary Maier, P.E., professional engineer supervisor III and supervisor of DEP's domestic wastewater facility permit review staff, also reviewed the applications, the Intent to Issue, and the draft Permit at Issue to ensure that the Project complied with all applicable rules and standards and that KWRU had provided reasonable assurances such that the Project should be approved. Ultimately, DEP determined that KWRU provided reasonable assurances that the relevant permit applications met the applicable statutory and rule requirements and standards. Accordingly, DEP issued a Notice of Intent to issue the Permit at Issue. Establishment of Prima Facie Entitlement to Permit at Issue The relevant portions of the permit file, including the permit applications, supporting information, and Notice of Intent to Issue for the Permit at Issue, were admitted into evidence at the final hearing. With the admission of these documents into evidence, KWRU established its prima facie case demonstrating entitlement to the Permit at Issue. See § 120.569(2)(p), Fla. Stat. Challenge to the Permit at Issue Once KWRU demonstrated prima facie entitlement to the Permit at Issue, the burden shifted to Petitioners to present evidence proving their case in opposition to the Permit at Issue. See id. To prevail in this proceeding, Petitioners bear the ultimate burden of persuasion to prove their case by a preponderance of the competent substantial evidence. Petitioners have raised numerous grounds in the Second Amended Verified Petition for Formal Administrative Hearing16/ that they contend mandate denial of the Permit at Issue. Each of these grounds is addressed below. Alleged Permit Application Deficiencies Petitioners contend that the Permit at Issue should be denied due to alleged deficiencies in the applications submitted for the Project. Capacity Analysis Report Petitioners allege that, under rule 62-600.405, KWRU was required to submit a Capacity Analysis Report ("CAR") as part of its application for the Permit at Issue and that its failure to do so renders the applications incomplete, thus requiring denial of the Permit at Issue. The purpose of a CAR is to analyze capacity at an existing wastewater facility and to apprise DEP when it becomes evident that expansion of the wastewater facility may be needed. Specifically, the CAR is performed and submitted on a periodic basis, or when certain contingencies occur, to apprise DEP of the actual flows through the facility. If the actual flows are approaching the facility's permitted capacity, the CAR serves to notify DEP that expansion of the facility may be warranted. Thus, the CAR helps ensure that the permittee recognizes the need for, and properly plans for, future expansion of the facility. In support of their contention, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who has experience in the planning and design of wastewater treatment facilities in Florida, including the Florida Keys. Lynch testified that the most recent three-month average daily flows reported to the DEP by KWRU repeatedly exceeded 50 percent of the permitted capacity of the Existing Wastewater Facility, thereby triggering the requirement in rule 62-600.40517/ that a CAR be submitted. KWRU previously submitted an initial CAR when the Existing Wastewater Facility historically exceeded 50 percent of its permitted capacity. Thereafter, KWRU submitted an updated CAR in April 2012, as part of the renewal application for the Existing Permit that KWRU filed in October 2011. The April 2012 CAR indicated that permitted flows would not be exceeded for ten years. Thus, under rule 62-600.405(5), a subsequent updated CAR would be due at five year intervals or when the applicant applied for an operation permit or renewal of an operation permit, whichever occurred first.18/ The persuasive evidence establishes that during the period between issuance of the Existing Permit in February 2012 and submittal of the applications for the Permit at Issue in 2014, the three-month average daily flows for the Existing Facility had not exceeded 50 percent of the treatment plant's capacity and the five-year interval CAR submittal interval (which would have expired in 2017) had not yet expired, so an updated CAR was neither required nor submitted. When development on Stock Island resumed in the 2012 through 2014 timeframe following an economic recession, it became apparent from actual flow data that the Existing Wastewater Facility would need to be expanded to accommodate the wastewater flow from new development, as well as to accommodate wastewater flow from existing development being required by law to connect to a central wastewater system. Accordingly, in April 2014, KWRU submitted the applications for the Permit at Issue. As part of KWRU's applications, the design and permitted capacity of the Existing Wastewater Facility were analyzed, and future wastewater flows for the facility were projected, taking into account all relevant factors, including projected development over an appropriate planning period, new connections from existing development, and the lack of seasonal variation in historic flows. Based on this information, the proposed design and permitted capacities for the Expanded Wastewater Facility were determined. This information is precisely that which would have been required in an updated CAR. Because all pertinent information necessary to determine the design and permitted capacities for the Expanded Wastewater Facility was submitted as part of the applications for the Permit at Issue, a separate CAR was not required and, indeed, would have been redundant and pointless. It should be noted that the Permit at Issue specifically requires submittal of a CAR upon renewal, which is five years from the date of issuance. Further, the Expanded Wastewater Facility is subject to chapter 62-600, including rule 62-600.405, so KWRU would be required to submit a CAR if circumstances specified in the rule were to occur.19/ Thus, Petitioners failed to demonstrate, by a preponderance of the competent substantial evidence, that a CAR was required to be submitted as part of applications for the Permit at Issue. Accordingly, the absence of a CAR as part of the applications is not a basis for denying the Permit at Issue. Deep Injection Well Requirement Petitioners contend that the design capacity for KWRU's wells exceeds 1 MGD, so KWRU was required under section 403.086(10)(e)2. to apply for approval to install deep injection wells——i.e., wells that are cased to a minimum depth of 2,000 feet. Petitioners further contend that KWRU's failure to include an application for deep injection wells in its applications thus mandates denial of the Permit at Issue. Under section 403.086(10)(e)1., injection wells serving wastewater facilities that have a design capacity of less than 1 MGD are required to be at least 90 feet deep and cased to a minimum depth of 60 feet. Under section 403.086(1)(e)2., injection wells serving wastewater facilities having a design capacity equal to or greater than 1 MGD must be cased to a minimum depth of 2,000 feet or such greater depth as may be required by DEP rule. As previously discussed, rule 62-600.200(19) defines "design capacity" as "the average daily flow projected for the design year which serves as the basis for the sizing and design of the wastewater facilities." The rule states that the design capacity is established by the permit applicant, and that the timeframe associated with the design capacity——such as annual average daily flow, maximum monthly average daily flow, or three- month average daily flow——also is specified by the applicant. Additionally, rule 62-600.400(3)(a), which is part of DEP's Design Requirements rule for domestic wastewater facilities, reiterates that the applicant establishes both the design capacity and the timeframe used to define its selected design capacity, with the caveat that the timeframe selected must reflect seasonal variations in flow, if any. As discussed above, the credible, persuasive evidence establishes that KWRU's selected design capacity and timeframe ——here, .849 MGD AADF——accurately and appropriately addresses the projected wastewater flows that will be treated by the Expanded Wastewater Facility. As Castle credibly testified, historical flows to the Existing Wastewater Facility do not indicate substantial seasonal residential flow, consistent with the workforce population residing year-round on Stock Island. Moreover, to the extent there may be some seasonal flow variation associated with projected hotel and commercial development, Castle took that into account in determining the design capacity for the Expanded Wastewater Facility. For these reasons, Castle's selection of AADF as the design capacity metric is appropriate, conforms to sound engineering principles, and complies with applicable DEP rules. Further, as previously discussed, the 1.273 MGD peak hourly flow is exactly that——the peak or maximum flow expressed on an hourly basis——that can be processed by the Expanded Wastewater Facility. It does not constitute the design capacity of the Expanded Wastewater Facility, which, by definition, is the average flow over a specified period of time. The persuasive evidence in the record shows that the proposed design capacity of the Expanded Wastewater Facility is .849 MGD AADF, and this design capacity is appropriate and based on sound engineering principles. As such, the design capacity of the facility is less than 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Project. Thus, Petitioners failed to demonstrate, by a preponderance of the evidence, that the deep well requirement in section 403.086(10)(e)2. applies to the Project. Accordingly, they did not establish that the Permit at Issue should be denied on the basis that KWRU did not apply for approval of deep injection wells as part of the applications for the Project. Identity of Permittee The Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, which is not an existing entity registered to do business in Florida or in any other state. Petitioners contend, and KWRU and DEP do not dispute, that a permit issued to an entity that does not legally exist cannot legally authorize any activities. Accordingly, to the extent the Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, Petitioners contend that this constitutes a basis for denying the Permit at Issue. At the hearing, DEP and KWRU presented credible evidence showing that the correct permittee is KW Resort Utilities Corp., not Key West Resort Utilities Corporation as was stated on the proposed Permit at Issue. Further, the permit applications correctly identify KWRU as the applicant for the Permit at Issue. Thus, identification of Key West Resort Utilities Corporation as the permittee on the proposed Permit at Issue was a typographical error, and the evidence establishes that this error will be corrected when the Permit at Issue is issued. If this typographical error is corrected, then the Permit at Issue should not be denied on this basis. Alleged Project Design and Engineering Deficiencies Petitioners allege that KWRU failed to provide reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the Expanded Wastewater Facility will not discharge or cause pollution in contravention of chapter 403 and applicable DEP rules. Petitioners further allege that KWRU has undersized the design capacity of the Expanded Wastewater Facility and that the appropriate design capacity is greater than 1 MGD, thus triggering the deep well requirement in section 403.086(10)(e)2. Projected Flows to Expanded Wastewater Facility In support of their position, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who testified that the future wastewater flows to the Expanded Wastewater Facility projected by KWRU in its applications are incorrect because they do not accurately address planned development in KWRU's service area, as required by the Ten States Standards. Lynch took the position that pursuant to the Ten States Standards, the appropriate planning horizon for the Project is at least ten years, which would require KWRU to project wastewater flow to the Expanded Wastewater Facility through approximately 2025, rather than through 2020, as projected in the applications for the Project. However, the persuasive evidence shows that KWRU utilized an appropriate planning horizon in projecting future wastewater flows to the Expanded Wastewater Facility. KWRU's facility design engineer, Castle testified, persuasively, that although the graphic submitted in the application shows the projected wastewater flows only through the year 2020, the planning horizon he used actually was infinite. This is because the projected buildout of the service area20/ to maximum wastewater flow is anticipated to occur between 2018 and 2020, and after that point, wastewater flows to the facility would remain constant. Thus, it was pointless to depict projected flows out to the year 2025——particularly since the narrative in the application describing the Project makes clear that buildout of KWRU's service area is anticipated to occur by 2020. Because the wastewater flows projected for the year 2020 accurately represent the maximum flows that the Expanded Wastewater Facility can process, the projected planning horizon to the year 2020 is appropriate for the facility, complies with the Ten States Standards, and complies with DEP rules. Lynch also asserted that the projected wastewater flows to the Expanded Wastewater Facility from development identified in the application do not accurately apply the standards in DOH Table I and that this inaccuracy further contributed to underestimation of the design capacity of the Expanded Wastewater Facility. Lynch arrived at this position by applying Table I to all identified future development——both residential and nonresidential——and considering an additional development (Key West Harbor Yacht Club) not listed in the applications. He projected that the future wastewater flow from these developments would be approximately 146,110 gallons per day——approximately 46,000 gallons per day higher than the 100,000 gallons per day that Lynch claimed KWRU projected for the planned developments on Stock Island. Based on the addition of 46,000 gallons to KWRU's proposed design capacity of .849 MGD, Lynch opined that .895 MGD is the design capacity that should have been proposed for the Expanded Wastewater Facility. However, the credible, persuasive evidence establishes that, in determining the design capacity of .849 MGD for the Expanded Wastewater Facility, Castle accurately projected the wastewater flow quantities from future development on Stock Island. Castle described in detail the process he undertook to determine the projected wastewater flows from the various land uses and locations on Stock Island through projected buildout between 2018 and 2020. Specifically, he identified planned nonresidential development on Stock Island expected to begin producing wastewater flows in 2014 and applied the DOH Table I standards to determine the projected flows for each development. To determine projected wastewater flow from future residential development on Stock Island, Castle identified approximately 40 acres of scarified or under-utilized property in KWRU's service area and applied a density of 12 equivalent dwelling units ("EDU") per acre,21/ with 167 gallons per day of wastewater flow attributable to each EDU, using actual historic wastewater flow data from the Master Plan. Additionally, for each scarified or under-utilized property having water frontage, he projected one boat slip per 35 feet of frontage and applied a 75-gallon-per-day flow for each boat slip using DOH Table I recreational vehicle flows. For years 2016 through 2019, Castle projected incremental increases in wastewater flows per year22/ to account for potential development of other currently occupied properties. The aggregate of all projected flows from the identified developments, the 40 acres and boat slips, and the incremental increases per year through buildout yielded a projected wastewater flow of .74 MGD to the Expanded Wastewater Facility by years 2018 through 2020, which represents buildout flow to the facility. Castle then added a "safety factor" of 15 percent to the projected .74 MGD wastewater flow to accommodate currently unknown future redevelopment of existing occupied properties, to reach the .849 MGD design capacity. The 46,000-gallon discrepancy between Lynch's .895 MGD design capacity calculation and Castle's .849 MGD design capacity calculation is attributable to four basic differences in how they each determined design capacity. First, Lynch used more recent development agreement and development order information that more precisely identified and quantified specific land uses than the information that KWRU had available to it at the time it prepared and submitted its application. However, the evidence did not establish that the flow information on which Lynch relied and that on which Castle relied were so appreciably different as to significantly affect the projected design capacity for the Expanded Wastewater Facility. Second, Lynch applied DOH Table I to project future wastewater flows from all future planned development on Stock Island, both residential and nonresidential, whereas Castle applied DOH Table I only to determine nonresidential development future flows, and used actual historic flow data from the Master Plan to determine residential development future flows. Castle's residential flow calculation using historical actual flow data conforms to the recommendation in section 11.242(a) of the Ten States Standards that actual flow data be used, to the extent possible, to predict future flows; thus, Castle's calculation likely more precisely projects future flow attributable to residential development on Stock Island.23/ Third, Lynch took into account the Key West Harbor Yacht Club flow into the Expanded Wastewater Facility, whereas KWRU did not consider this flow in projecting future flows to the facility. This omission constituted an oversight on KWRU's part, and the flow from this development should have been included in the wastewater flow projection for the facility. However, the persuasive evidence did not show that this omission constituted a significant error in KWRU's .849 MGD AADF design capacity projection.24/ Fourth, Lynch apparently misinterpreted a statement in the application referencing "such redevelopment" as referring to the known planned developments on Stock Island, which were specifically identified by name in the application, and, thus, interpreted the reference to 100,000 gallons as being the flow KWRU projected for those known, named developments. However, the persuasive evidence established that the 100,000 gallons that KWRU assigned to "such redevelopment" in its application referred not to the known, named developments identified in the application, but instead to presently unknown future development on Stock Island, which Castle took into account by including the 15 percent "safety factor" in determining design capacity. Pursuant to the foregoing, it is determined that KWRU demonstrated, by credible, persuasive evidence, that it accurately estimated future wastewater flows from projected development on Stock Island to determine an appropriate design capacity of .849 MGD AADF for the Expanded Wastewater Facility. Design Capacity Timeframe Petitioners allege that the timeframe associated with the design capacity specified by KWRU——the annual average daily flow, or AADF——is not appropriate for the Expanded Wastewater Facility because it fails to reflect seasonal flows to the facility as required by rules 62-600.200(16) and 62-600.400(3)(a). Petitioners assert that the design capacity for the facility should instead be expressed in maximum monthly average daily flow ("MMADF") to account for seasonal flows. In support, Petitioners presented the testimony of Lynch, who opined that the KWRU service area experiences seasonal flows driven by the influx of tourists to Stock Island during tourist season. Lynch based this opinion on the wastewater flow data for the Existing Wastewater Facility for the year 2014, and his calculations showing that the three-month average daily flow ("ADF") for October through December 2014 was 11 percent higher than the AADF and that the MMADF for that period was 16 percent higher than the AADF. Lynch considered this variation substantial enough to indicate seasonality, so that MMADF is the appropriate design capacity timeframe for the Expanded Wastewater Facility. Using MMADF as the design capacity timeframe, Lynch opined that the design capacity of the Expanded Wastewater Facility should be 1.04 MGD MMADF——which would trigger the deep well requirement in section 403.086(10)(e)2. Castle chose AADF as the timeframe for the Expanded Wastewater Facility design capacity because historical flow records over a period of years do not show significant seasonal variations in flow for Stock Island. Castle testified, credibly and persuasively, that while the historical flow data shows a consistent slight increase in flows from August to December, in his view, the variation is not significant enough to constitute a seasonal flow. This is consistent with the evidence establishing that Stock Island is a "bedroom community" having a mostly year- round workforce population. Lynch formulated his opinion regarding appropriate design capacity using 2014 flow data for the entire year, which was not available at the time KWRU filed its permit applications for the Project in April 2014. Although Lynch relied on more recent data, his opinion was based only on one year of data. By contrast, Castle selected AADF as the design capacity metric based on the previous five years of flow data, which showed variations in flow ranging between two percent and 12 percent on a three-month average daily flow basis. Castle credibly testified that these variations were not significant enough to indicate seasonal flows and did not closely correlate with tourist season in the Keys. Additionally, in calculating his flow projections for the Expanded Wastewater Facility, Castle assumed 100 percent year-round occupancy for residential units, so that his projected design capacity of .849 MGD necessarily took into account potential seasonal flows. Thus, to the extent there are seasonal flows, the facility simply will receive flows below the design capacity during off-season. The undersigned finds Castle's use of long-term historical flow data more reliable than Lynch's use of only one year of data in assessing whether there is flow seasonality.25/ DEP's wastewater permitting supervisor, Gary Maier, concurred that the variations in wastewater flow do not reflect a significant seasonal variation that would require the use of a smaller averaging period than AADF. Maier also observed that none of the wastewater facilities in the Florida Keys having a design capacity greater than 100,000 gallons per day has a design capacity based on MMADF. This evidences that Castle's selection of AADF as the timeframe metric conforms to the design capacity standard used for facilities of comparable size in the Florida Keys. Based on the foregoing, it is determined that KWRU's selection of AADF as the design capacity timeframe metric for the Expanded Wastewater Facility is appropriate and complies with DEP rules. Petitioners failed to demonstrate that KWRU's selection of AADF as the design capacity timeframe metric violates any applicable laws or rules. Accordingly, Petitioners did not demonstrate that the Permit at Issue should be denied on this basis. Ability of Expanded Wastewater Facility to Reliably Meet AWT Petitioners further allege that KWRU failed to provide a complete application demonstrating that the treatment processes for the Expanded Wastewater Facility will efficiently and reliably meet effluent limitations for design year flow. As discussed above, the evidence establishes that KWRU provided all of the information required for the applications for the Permit at Issue, so DEP correctly determined that the applications were complete before commencing its substantive review of the applications. Also as discussed above, Lynch opined that the proposed design capacity was undersized for the flows he projected for the Expanded Wastewater Facility. However, the persuasive evidence shows that KWRU's proposed design capacity of .849 MGD AADF is appropriate, conforms to sound engineering principles, and meets applicable statutory and rule requirements. In order to ensure that a wastewater facility functions effectively and reliably, it is important that the facility not be substantially oversized for the amount of wastewater flowing into the facility. In an over-sized facility, inconsistent timing of wastewater flow, lack of appropriate chemical environment for waste breakdown, and inadequate food supply for the microorganisms may lead to ineffective performance of the facility. A consequence of these imbalances is that undesirable microbes may populate the facility, causing incomplete solids settlement, overflow of solids downstream to the filters, and operational problems resulting in failure of the facility to treat wastewater to AWT standards. KWRU provided reasonable assurance, based on the proposed .849 MGD AADF design capacity and the other engineering features of the Project, that the Expanded Wastewater Facility is appropriately sized and will effectively and reliably treat the wastewater to AWT standards. Thus, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it is undersized and will not reliably meet AWT standards. Key West Golf Club Reuse System Issues Petitioners contend that as part of the applications for the Project, KWRU proposes to send 1 MGD of reclaimed water to the golf course. Petitioners claim that, given an irrigated area of 100.27 acres and an average irrigation rate of .73 inches per acre per day, only 300,000 gallons of reclaimed water per day is accounted for by reuse as irrigation. On that basis, Petitioners allege that KWRU has not demonstrated that the 700,000 gallon-per-day balance of reclaimed water sent to the golf course will be reused for a beneficial purpose rather than being disposed. This contention is based on a misunderstanding of the structure and function of the reuse system. The 1 MGD flow stated in the permit application is the design capacity of the reuse system, which is not being changed by the Permit at Issue. Importantly, this figure does not quantify the amount of water that is or actually will be sent to the golf course or applied as irrigation to the golf course irrigated area in a single day. Rather, it represents the flow capacity to which the reuse system is designed.26/ The applications for the Permit at Issue do not propose any changes to the quantity of reclaimed water being reused, which is governed by the irrigated acreage at the golf course and the irrigation rate. These parameters are not being changed. As previously discussed, KWRU sends reclaimed water to the golf course only on an as-needed basis, where it is stored in the ponds until needed for irrigation. If the course does not need reclaimed water sent to the ponds, KWRU does not send the water. Thus, the golf course controls the amount of reclaimed water that is sent to the storage ponds. Although the permitted capacity of the reuse system is being expanded from .499 MGD AADF to .849 MGD AADF, the actual amount of reclaimed water sent to the golf course by KWRU is not anticipated to change because, as discussed above, the amount being reused for irrigation is not being changed. Since the amount of reclaimed water being reused for irrigation is not increasing, the reuse system is not being expanded. Thus, the evidence does not show that 700,000 gallons per day of reclaimed water will be sent to the golf course for disposal, inconsistent with rule 62-610.810(2), rather than being reused for a beneficial purpose.27/ Petitioners also assert that the increased permitted capacity of the reuse system constitutes a "new or expanded reuse or land application project," so that an engineering report and reuse feasibility study were required as part of the applications for the Permit at Issue, pursuant to rule 62-610.310(1). KWRU previously provided these documents when it originally applied for authorization of the reuse system. The credible, persuasive evidence shows that increasing the permitted capacity of the reuse system does not trigger the requirement to submit another engineering report or reuse feasibility study. This is because no changes to the structural components or operation of the reuse system facilities are proposed. As Castle credibly explained, and Maier confirmed, the relevant question in determining whether an engineering report is required is whether the land application rate and/or the irrigated acreage is being changed, which would increase the amount of reclaimed water being reused and, thus, would require expansion of the reuse system. As discussed, neither the irrigated area nor the irrigation application rate is proposed to change under the Project. Thus, neither an engineering report nor a reuse feasibility study are required as part of the applications for the Permit at Issue. Therefore, Petitioners failed to demonstrate that the Permit at Issue should be denied on the basis that KWRU did not submit a reuse feasibility or engineering report as part of its applications for the Permit at Issue. Alleged Surface Water Quality Violations by Injection Wells Petitioners allege that disposing of the effluent from the Expanded Wastewater Facility through the injection wells will cause or contribute to violations of surface water quality standards codified in chapter 62-302. Petitioners further allege that, as a consequence, the discharge will violate antidegradation requirements in rules 62- 4.242, 62-302.300, and 62-302.700(1), and that the wells do not comply with the underground injection control rule requirement in rule 62-528.630(7), specific to Monroe County, that the wells not cause or contribute to surface water quality violations. Regulatory Status of Surface Waters in Stock Island Vicinity A significant portion of the surface waters in the Florida Keys, including those surrounding Stock Island and Key West, are classified as Class III surface waters pursuant to rule 62-302.400. Water quality criteria adopted by rule for Class III surface waters are established to protect fish consumption, recreation, and the propagation of a healthy, well- balanced population of fish and wildlife. As previously noted, certain portions of the Florida Keys, including the surface waters surrounding Stock Island and Key West, are designated an OFW. Fla. Admin. Code R. 62- 302.700(9)(i)13. No degradation of surface water quality, other than that allowed under rules 62-4.242(2) and (3), is permitted in an OFW. See Fla. Admin. Code R. 62-302.700(1). The narrative nutrient criterion codified at rule 62- 302.530(47)(a) states: "[t]he discharge of nutrients shall be limited as needed to prevent violations of other standards contained in this chapter. Man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of Rules 62-302.300, 62-302.700, and 62-4.242, F.A.C." The narrative nutrient criterion codified at rule 62-302.530(47)(b) states: "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." These criteria apply in Class III surface waters, including the surface waters in and around the Florida Keys. See Fla. Admin. Code R. 62-302.531(1). Rule 62-302.531(2) requires DEP to numerically interpret the narrative nutrient criterion for nutrients (nitrogen and phosphorus) and for nutrient response (chlorophyll- a). Where a site-specific numeric interpretation of rule 62- 302.530(47)(b) has been established, that numeric interpretation constitutes the primary standard applicable to that site. Fla. Admin. Code R. 62-302.531(2)(a). A range of natural factors affect nutrient loading for a given waterbody. Therefore, site- specific numeric interpretations of the narrative nutrient criteria generally are deemed more reliable than broadly applicable, non-site specific criteria. Estuary-specific numeric interpretations of the narrative nutrient criterion in rule 62-302.530(47)(b), consisting of nutrient values for nitrogen and phosphorus and a nutrient response value for chlorophyll-a have been adopted for many areas in the state of Florida, including the Florida Keys. These numeric interpretations——commonly referred to as "numeric nutrient criteria," or "NNCs"——are open water, area-wide averages. See Fla. Admin. Code R. 62-302.532(1). For the Florida Keys, seven Florida Keys Marine Nutrient Regions ("FKMNRs") have been identified and geographically delineated on a series of maps adopted by rule. For each of these FKMNRs, NNCs have been adopted for nitrogen, phosphorus, and chlorophyll-a. Fla. Admin. Code R. 62- 302.532(1)(g). The NNCs for the Lower Keys Region and the Back Bay Region are germane to this proceeding. For the Bay Back Region, the NNCs are .009 mg/L for phosphorus, .25 mg/L for nitrogen, and .3 µg/L for chlorophyll-a. For the Lower Keys Region, the NNCs are .008 mg/L for phosphorus, 0.21 mg/L for nitrogen, and 0.3 µg/L for chlorophyll-a. These NNCs are expressed as annual geometric means that are not to be exceeded more than once in a three-year period.28/ The area of water extending from the shoreline out to 500 meters offshore in the Florida Keys is referred to as the "Halo Zone." DEP has adopted by rule a map delineating the Halo Zone. The NNCs applicable to surface waters in each of the FKMNRs currently do not apply to the surface waters in the Halo Zone. Thus, only the narrative nutrient criteria codified at rules 62-302.530(47)(a) and (b) apply to surface waters in the Halo Zone at this time.29/ Additionally, pursuant to chapter 62-303, the Impaired Waters Rule, DEP has identified and delineated spatial assessment areas in waterbodies based on homogeneity for multiple water quality parameters.30/ These assessment areas, called "Waterbody IDs" or "WBIDs," are delineated for purposes of assessing, through water quality sampling, whether the surface waters within the WBID are impaired——that is, whether they fail to meet one or more of the applicable water quality standards due to pollutants.31/ DEP has delineated several WBIDs, identified by number, in the Halo Zone surrounding Key West and Stock Island. The Halo Zone surrounding Stock Island comprises WBID 6014B, and the Halo Zone surrounding Key West consists of WBIDs 6014A and 8073A through 8073H.32/ The Back Bay Region, which is located north of Stock Island and outside of the Halo Zone, is designated as WBID 8074. The Lower Keys Region consists of WBID 8073, which is located northwest of Stock Island and surrounding Key West outside of the Halo Zone, and WBID 8079, which is located south of Stock Island outside of the Halo Zone. Water quality monitoring, consisting of sampling for a range of parameters, is conducted at monitoring stations within each of these WBIDs. At least one monitoring station is located within each WBID. This water quality sampling is conducted according to DEP's applicable standard operating procedures. The monitoring stations have collected nutrient and nutrient response data spanning a period of years. The data collected in 1995 through 2013 are pertinent to this proceeding.33/ The Keys RAP, which was prepared in 2008 and updated in 2011, prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. As authorized under rule 62-303.600, DEP determined that the Keys RAP provides reasonable assurance that the restoration goals for the surface waters in the Florida Keys will be achieved by ensuring that all management activities specified in the Keys RAP would be implemented for specified waterbodies by 2015. Accordingly, in February 2012, DEP approved and adopted the Keys RAP by Secretarial Order. Current and historic water quality data show that all WBIDs in the Keys, including those in the Lower Keys Region, Back Bay Region, and Halo Zone for the surface waters surrounding Key West and Stock Island, are not impaired for nutrients——that is, that the NNCs and narrative nutrient criteria, as applicable, are being met. Pursuant to sections 403.061 and 403.067, Florida Statutes, and rule 62-303.600, DEP has classified the Florida Keys WBIDs as Category 2 under the waterbody use attainment classification scheme34/ for nutrients and nutrient response. The classification of the Keys WBIDs in this category means that sufficient water quality data are available to determine that at least one designated use is attained. Thus, as authorized by section 403.067 and rule 62-303.600(2), DEP has placed the Keys WBIDs on the "Delist List."35/ This "de-listing" action recognizes that the Florida Keys WBIDs, including those in the Halo Zone, are not impaired for nutrients and chlorophyll-a. Subsurface Geology in Vicinity of Stock Island The parties agree that, as a general proposition, the ground water and surface waters are connected to each other in the Florida Keys. However, no evidence was presented showing a specific location or locations where ground water connects to surface waters. Although it generally is undisputed that, at some point, ground water connects to surface waters, the parties disagree regarding whether, where, and how long it may take for the injected effluent to reach surface waters. Petitioners contend that due to the local geology, the injected effluent from the Existing Wastewater Facility rapidly reaches surface waters in the vicinity of Stock Island and that the increased discharge through the new injection wells will exacerbate and cause or contribute to surface water quality violations in the immediate vicinity of Stock Island and offshore. In support of this position, Petitioners presented the testimony of Scott Zednek, a Florida-licensed P.G. Zednek opined that due to the absence of subsurface sediments that would prevent upward flow to surface waters, the buoyant freshwater effluent injected down the wells will rapidly vertically migrate through the highly transmissive Key Largo Limestone and Miami Limestone to reach surface waters. To develop his opinion, Zednek reviewed a Florida Geological Survey boring log ("FGS Log") approximately one-third mile from the Existing Wastewater Treatment Facility and a Universal Engineering Services geotechnical study boring log ("UES Log") performed on the KWRU site. The FGS Log was prepared specifically to analyze the subsurface geology. The UES Log was performed as part of a geotechnical study to analyze subsurface conditions onsite specifically for the purpose of determining the load-bearing capability of the KWRU site to support a concrete water tank. As such, the FGS Log provides a more precise view of the subsurface geology in the vicinity of the KWRU site.36/ Based on the UES Log, Zednek opined that there are no confining layers underlying the KWRU site. The UES Log for the site shows N-values, generated using an ASTM-designated process for determining the resistivity or strength of the subsurface, of between two and 43 for the first 60 feet of sediment below the surface. According to Zednek, an N-value of less than 50 indicates lack of a confining layer. Further, his review of the UES Log did not show the presence of Q-layers, which may function as semi-confining layers, or aquitards, that would substantially restrict the movement of fluid, including the injected effluent.37/ Based on the UES Log, Zednek opined that the limestone underlying the site is fractured, creating vertical pathways for the injected effluent to migrate upward to the surface. Zednek testified that the Key Largo Limestone, into which the effluent is injected, is very porous and highly transmissive, facilitating rapid migration once the effluent is injected. Based on his review of the FGS Log, Zednek testified that a Q-layer first appears at approximately 62 feet below the ground surface——below the depth of the injection wells' casing—— so it would not act as a confining layer for the injected effluent. Zednek further observed that this Q-layer is only 1.5 centimeters thick. In his experience, this thickness is not sufficient to create a confining or semi-confining layer. Zednek thus opined that the subsurface geology at the KWRU site will enable and facilitate vertical migration of the injected effluent to surface waters. Zednek also noted the proximity of the Safe Harbor channel cut. He opined that the injected effluent likely would horizontally migrate through the highly transmissive Key Largo Limestone,38/ then vertically migrate to surface waters through the "path of least resistance" at the Safe Harbor channel cut. As further support for his opinion, Zednek cited an interim report summarizing results of a subsurface dye tracer study performed for the Florida Keys Aqueduct Authority regional wastewater treatment facility. The study's purpose was to determine whether the subsurface geology at the Cudjoe Key location was sufficiently confining to prevent vertical migration of the injected effluent from shallow injection wells proposed at that facility. According to Zednek, the interim report showed that the subsurface at the injection site was not sufficiently confining to prevent the injected effluent from rapidly vertically migrating to surface waters. Petitioners also presented the testimony of John Paul, Ph.D., in support of their contention that the injected effluent from the Expanded Wastewater Facility would rapidly rise through the subsurface limestone up into surface waters. Dr. Paul testified regarding viral tracer studies he had conducted at Long Key, approximately 65 miles east-northeast of Stock Island, and at the Saddlebunch Keys, located approximately 20 miles east- northeast of Stock Island. In conducting these studies, Paul injected bacteriophage viruses into Class V wells and tracked their movement into surface waters. In the Long Key study, the injected viruses moved through the subsurface limestone to the south-southeast and appeared in surface waters in deep canals on the ocean side of U.S. 1 approximately 53 hours after injection. In the Saddlebunch Keys study, the viruses also appeared in surface waters some distance south-southeast of the location at which they were injected.39/ Paul acknowledged that when the viruses appeared in surface waters, they were detected at a concentration of one trillionth (.0000000000001 or 1 x 10-12) less than the concentration in which they had been injected, indicating significant dilution by ground water and/or surface waters. He also acknowledged that canals dredged to depths shallower than the injected depth may not facilitate rapid migration of the injected effluent to surface waters. In rebuttal, KWRU presented the testimony of Michael Alfieri, a Florida-licensed P.G. who specializes in hydrogeology. Alfieri examined the FGS Log and UES Log, and also reviewed the detailed lithology logs and photographs for the FGS Log. Based on his review of this information, Alfieri opined that the FGS Log indicates the presence of semi-confining layers that function as aquitards in the first 60 feet of subsurface sediment. Alfieri noted that the existence of an aquitard depends on the nature of the geologic materials present at that location, so that N-values do not perfectly correlate with the presence or absence of confining layers. Thus, a carbonate silt or clay having an N-value of only two may better function as an aquitard than a porous, transmissive limestone having an N-value of 50, and silts or clays having a thickness as little as one centimeter may function as an aquitard to significantly impede fluid flow.40/ Based on his review of the FGS Log and the detailed lithology log descriptions and photographs for the FGS Log, Alfieri observed four laminated calcrete zones, six Q-zones, and chalky limestone within the first 60 feet——all of which would function as aquitards to impede the vertical movement of the effluent.41/ Thus, according to Alfieri, the effluent is anticipated to migrate laterally from the injection wells below these confining layers before migrating through a vertical pathway to reach surface waters at an unknown location. To predict the likely migration pathway for the effluent, Alfieri conducted hydrological modeling using a simplistic SEAWAT computer model. He used horizontal and vertical transmissivity values for the subsurface strata derived from geological studies previously conducted in the Florida Keys. Although these studies indicate greater horizontal than vertical transmissivity, Alfieri assumed equal vertical and horizontal transmissivity for modeling purposes——necessarily yielding more conservative results than would be anticipated to occur in real life. Accordingly, the modeling results showed more rapid vertical migration than would be anticipated in real life when the Q-zones and calcrete layers depicted in the FGS Log are considered. Even with these conservative assumptions, the modeling results showed the injected effluent migrating horizontally at least a mile offshore42/ before migrating upward to surface waters. The persuasive evidence shows that the injected effluent will be confined to the subsurface and will travel laterally a substantial distance before rising to surface waters at some unknown location or locations offshore. Thus, the credible, persuasive evidence does not support the conclusion that the effluent will rapidly rise to the surface waters in the nearshore area in the vicinity of the KWRU site.43/ Narrative Nutrient Criteria Petitioners allege that the effluent injected down the wells into the ground water will reach surface waters, causing or contributing to a violation of the narrative nutrient criteria for surface waters codified in rules 62-302.530(47)(a) and (b).44/ In support, Petitioners presented the testimony of James Fourqurean, Ph.D., who has extensive experience in research on Florida Keys aquatic ecosystems in their healthy and imbalanced states. Dr. Fourqurean described these ecosystems in their healthy state and in their nutrient-enriched state. Florida Keys nearshore ecosystems normally are oligotrophic, which means they are nutrient-limited. Thus, they do not normally exhibit high chlorophyll-a levels and microalgae counts. When nutrient levels in the Florida Keys ecosystems increase——whether by increasing the concentration of nutrients in discharges or by increasing the volume of water containing nutrients——primary production, i.e., plant growth, increases. Seagrass communities are phosphorus-limited, so that when these communities are exposed to phosphorus-enriched water, the phosphorus is rapidly absorbed from the water column and is stored in the benthos.45/ This phosphorus capture initially leads to increased seagrass abundance, but as phosphorus enrichment continues, the community species composition rapidly shifts to favoring seaweed and microscopic algae, ultimately damaging or destroying the seagrass community. Coral reef communities similarly are nitrogen-limited. Thus, when coral reef communities are exposed to nitrogen- enriched water, they shift to algae-dominated communities——again, damaging or destroying the coral reef communities. Based on historical aerial photographs of the area surrounding Safe Harbor and his experience studying seagrasses in the Florida Keys, Fourqurean concluded that the natural seagrass populations in the entire Florida Keys National Marine Sanctuary area, which includes the Stock Island area, are experiencing ecological imbalance. On the basis of the water quality sampling he conducted in and around Safe Harbor, Fourqurean opined that the imbalance is the result of man-induced nutrient enrichment. However, he did not engage in field studies in and around Safe Harbor, so could not cite specific examples where seagrasses had been replaced by algal-dominated communities in that area. Fourqurean noted that human waste contains high concentrations of phosphorus and nitrogen. In his view, because the effluent from the Existing Wastewater Facility contains phosphorous, it necessarily constitutes a source of phosphorous in the surface waters in Safe Harbor, even though it is injected into ground water. However, he acknowledged the existence of numerous other sources of nitrogen and phosphorus in the Safe Harbor vicinity, including septic tanks, boat cleaning operations and pump outs, and storm water runoff. He further acknowledged that he did not know where or when effluent from the Existing Wastewater Facility (and, by extension, the Expanded Wastewater Facility) may reach surface waters. Fourqurean acknowledged that the Permit at Issue would authorize the injection of effluent treated to AWT standards into ground water, rather than directly to surface waters, and he further acknowledged that the total phosphorus and nitrogen loading from the Expanded Wastewater Facility would substantially decrease as a result of conversion to AWT, even though the volume of effluent discharged down the wells may as much as double. He remained concerned that the Expanded Wastewater Facility may contribute phosphorus——even in very small quantities——to surface waters, causing imbalance to seagrass communities. He also opined that when saline ground water and the fresher effluent mix, the resulting brackish solution would dissolve the calcium carbonate comprising the subsurface limestone, releasing stored phosphorus that would eventually reach surface waters and negatively affect nearshore seagrass communities, However, he acknowledged that depending on subsurface physical conditions and flow paths of the effluent, phosphorous, nitrogen, or both, may be completely removed prior to the effluent reaching surface waters. He further acknowledged that seagrass community health in the Florida Keys National Marine Sanctuary has improved in the last two years and that water quality also has improved, reversing a ten-year decline. This is consistent with replacement of onsite septic tanks by central wastewater treatment systems in the Florida Keys. On rebuttal, KWRU presented the testimony of William Precht, who has extensive experience with Florida Keys geology and aquatic communities. Precht confirmed the existence of numerous sources of significant nutrient enrichment in the Safe Harbor vicinity other than the Existing Wastewater Facility, and noted that these sources must be taken into account when analyzing nutrient enrichment in Safe Harbor. He testified that raw wastewater is particularly deleterious to benthic communities. Thus, connecting wastewater generators that currently use septic tanks to central wastewater treatment systems can significantly improve water quality. Precht observed that Fourqurean's single-day sampling in the Safe Harbor area provided information regarding variability in nutrient concentrations, but characterized Fourqurean's conclusion that the Existing Wastewater Facility was the source of the nutrients as "unscientific" because it was based on supposition rather than on testing. He opined that the limited data set gathered over a one-day period could not reliably identify the source of nutrient enrichment in Safe Harbor. Precht testified that flushing capability is a key influence on nutrient concentration in surface waters. The further from a natural marine environment that water quality testing is performed, the more likely water quality will be poor due to nutrient enrichment from land-based sources. Given the configuration of Safe Harbor, water quality would be poorest in the interior dead-end canals and would steadily improve as one moved into more open water and flushing increased, with the highest water quality in open waters outside the canal system. Precht opined that the presence of noxious benthic plant life in the Safe Harbor vicinity may be attributable the destruction of seagrass communities in the area by historical dredging, rather than due to nutrient enrichment. Based on the reduction in total nitrogen and total phosphorus loading as a result of implementing AWT, Precht opined that the proposed discharge will not negatively affect the biological communities in the Safe Harbor vicinity. He further opined that due to the rapid uptake of phosphorus in the marine environment and due to denitrification that occurs in ground water and in marine surface waters, there is little chance that any nutrient loading that may result from the injected effluent would cause damage to the coral reef environment. Also on rebuttal, Alfieri persuasively testified that although phosphate release does occur when freshwater is injected into limestone that formed in a saline environment, this process gradually occurs over "geologic time"——that is, over millions of years. Therefore, he did not anticipate a significant release of phosphate from the subsurface limestone as a result of the effluent discharge. Also, limestone rapidly absorbs phosphorous, so phosphorus in the injected effluent would be absorbed quickly by the subsurface limestone.46/ Further, in any event, the effluent will be diluted by at least seven orders of magnitude——that is, one hundred millionth (.00000001)——of the injected concentration by the ground water, and/or by surface waters (assuming the effluent eventually reaches surface waters). As discussed above, the Keys RAP was prepared in 2008 and updated in 2011. The Keys RAP prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. Pursuant to the Impaired Waters Rule and DEP's adoption of the Keys RAP, activities that are consistent with the Keys RAP are considered to provide reasonable assurance that the narrative nutrient criterion in rule 62-302.530(47)(b) will be met. As discussed above, the Project will expand a centralized wastewater treatment plant that will accept, and treat to AWT standards, wastewater generated by development on Stock Island——including development that currently relies on onsite septic tanks for wastewater disposal. The Project is consistent with the Keys RAP, so there is reasonable assurance that the Project will meet the narrative nutrient criterion in rule 62-302.530(47)(b). The persuasive evidence shows that the Project will not cause or contribute to alterations of nutrient concentrations in water bodies so as to cause an imbalance in natural populations of aquatic flora or fauna. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the narrative nutrient criterion in rule 62-302.530(47)(b). Further, for the reasons discussed below, it also is determined that the Project will not violate the narrative nutrient criterion codified at rule 62-302.530(47)(a). Numeric Nutrient Criteria Petitioners also allege that the effluent will cause or contribute to violation of the estuary-specific numeric interpretations of the narrative nutrient criteria for the Back Bay nutrient region, codified at rule 62-302.532(1)(g)1., and the Lower Keys nutrient region, codified at rule 62-302.532(1)(g)3. In support, Petitioners cite the results of surface water sampling performed by Fourqurean in the Safe Harbor area showing high levels of nitrogen, phosphorus, and chlorophyll-a. Petitioners contend that these high nutrient levels evidence that the existing injection wells already are causing or contributing to surface water quality violations in the waters surrounding Stock Island, and that the increased effluent discharge from the proposed new injection wells will exacerbate this situation, further causing or contributing to violations of surface water quality standards. In preparing his opinion regarding the effect of the proposed injection wells on surface water quality, Fourqurean sampled surface water quality on one day at nine stations located in the vicinity of Stock Island, ranging from shallow waters inside the Safe Harbor basin to deeper waters offshore. Samples were collected at the surface and at a depth of one meter below the surface following the standard operating procedures for water quality sampling established by the Florida Keys Water Quality Protection Program. Fourqurean testified that the samples collected at the stations inside the Safe Harbor basin and near the shore of Stock Island showed very high levels of chlorophyll-a, evidencing that these areas are dominated by microalgae and, thus, are eutrophic. Additionally, the samples collected inside the Safe Harbor basin exhibited very high phosphorus concentrations—— almost three times greater than the estuary-specific numeric nutrient criterion for phosphorus. Phosphorus concentrations correspondingly decreased as samples were collected outside of the basin and offshore. Nitrogen concentrations followed a similar pattern in the sampling that Fourqurean conducted inside and outside of the Safe Harbor basin. According to Fourqurean, the high nutrient concentrations in the samples taken in Safe Harbor, when compared to the lower concentrations in samples taken outside of Safe Harbor, evidence the existence of a large source of phosphorous and nitrogen in Safe Harbor——in his view, the Existing Wastewater Facility. However, Fourqurean acknowledged that there are many potential nutrient enrichment sources on Stock Island, including fishing operations, boat sewage pump-outs, and direct discharges of storm water to surface waters. He further acknowledged that the specific source of phosphorus and nitrogen in the surface waters surrounding Stock Island cannot be identified. He did not opine as to the relative amounts of nutrients in surface waters that he believes are being contributed by the Existing Wastewater Facility or that will be contributed by the Expanded Wastewater Facility, as compared to other nutrient sources in the Safe Harbor area. He also acknowledged that a scientifically-valid water quality study would require more than a single day of sampling.47/ Kenneth Weaver, environmental administrator for DEP's Standards Development Section,48/ credibly and persuasively testified, and the water quality data for nutrients and chlorophyll-a collected in the WBIDs surrounding Key West and Stock Island show, that the surface waters in these WBIDs meet the applicable NNCs.49/ Historical water quality data also show that since 2008, the surface waters in these WBIDs continuously have met the baseline concentrations on which the NNCs were established and adopted. Even with the increased volume of wastewater treated by the Expanded Wastewater Facility, implementation of the AWT standard by the facility's wastewater treatment trains will substantially reduce the amount of total nitrogen and total phosphorus discharged into ground water through the injection wells. Specifically, for total nitrogen, the concentration will be reduced from 13.92 mg/L to 2.25 mg/L, and the total amount of nitrogen loading will be reduced from 58 to 15.9 pounds per day, representing a total net reduction of 72.4 percent in the discharge of total nitrogen. For total phosphorus, the concentration will be reduced from 3.47 mg/L to .75 mg/L, and the total amount of phosphorus loading will be reduced from 14.4 to 5.3 pounds per day, representing a total net reduction of 63.3 percent in the discharge of total phosphorus.50/ Weaver addressed the effects of these projected nutrient discharge concentrations on the surface waters in WBIDs 8074 and 8079, which comprise the portions of the Lower Keys Region and Back Bay Region closest to the KWRU site. He opined that, because these regions are currently meeting the applicable NNCs for nitrogen and phosphorus, and because KWRU's implementation of AWT will result in substantial reduction of total nitrogen and phosphorus loading, the NNCs will continue to be met in these regions——even in a "worst-case" scenario that assumes all of the treated effluent from the Expanded Wastewater Facility is disposed of through the injection wells and reaches the surface. The persuasive evidence shows that the Project will not cause or contribute to violations of the applicable numeric nutrient criteria. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the applicable numeric nutrient criteria in rule 62-302.532(1)(g)1. and 3. Surface Water "Free-From" Standards Petitioners allege that the effluent contains iron and copper above detection limits, as well as personal care products and pharmaceuticals, and that these constituents violate rules 62-302.500(1)(a)5. and 62-302.530(61). Rule 62- 302.500(1)(a)5. requires all surface waters of the state to be free from domestic, industrial, agricultural, or other man- induced non-thermal components of discharges which, alone or in combination with other components of discharges (whether thermal or non-thermal), are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species, unless specific standards for such components are established by rule. Rule 62-302.530(61) effectively requires surface waters to be free from substances in concentrations which injure, are chronically toxic to, or produce adverse physiological or behavioral response in humans, animals, or plants. These rules collectively comprise the "free-from" standards for surface waters. Petitioners presented no evidence to substantiate the allegation that the effluent from the Expanded Wastewater Facility will contain pharmaceuticals or personal care products. However, even assuming these constituents were present in the effluent, Petitioners did not present evidence showing that they are carcinogenic; mutagenic; or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species; or that they are injurious or chronically toxic to, or produce adverse physiological or behavioral response, in humans, animals, or plants. Petitioners did not present evidence showing that the effluent contains copper and iron in quantities that violate any applicable surface water quality standards, including the surface water "free-from" standards. Paul testified, based on sampling he conducted at domestic wastewater outfalls discharging directly to surface waters, that effluent treated to AWT standards often contains pathogenic bacteria and viruses that constitute threats to human health. On this basis, he opined that even though the effluent from the Expanded Wastewater Facility is treated to AWT, it may contain pathogenic constituents that are harmful to human health. However, as previously discussed, the evidence shows that the effluent discharged through KWRU's injection wells will be substantially diluted by groundwater, and also by surface waters to the extent it reaches surface waters at some unknown location. Accordingly, the results of Paul's pathogen studies cannot be extrapolated to conclude that KWRU's effluent also will contain pathogenic bacteria and viruses in such amounts as to constitute a threat to human health. Petitioners failed to show that the effluent disposed of in the injection wells will cause or contribute to violations of the surface water quality standards in rules 62- 302.500(1)(a)5. and 62-302.530(61). Dilution to Meet Surface Water Quality Standards Petitioners allege that KWRU is relying on dilution of the effluent in order to meet surface water quality standards without having been permitted for a mixing zone, in violation of rule 62-302.500(1)(c).51/ This contention lacks merit. As discussed in detail above, the credible, persuasive evidence establishes that the effluent discharged through the injection wells will not violate water quality standards for and parameters, including for nutrients, and will not cause or contribute to the violation of water quality standards. The credible, persuasive evidence establishes that once injected, the effluent will horizontally migrate a considerable distance before it may migrate vertically to reach surface waters. The parties generally agree that ground water and surface waters are "connected" in the Florida Keys. To that point, although it appears likely that at some point the effluent will reach surface water, the evidence does not establish that is an absolute certainty. Nonetheless, even assuming the effluent would reach surface waters at some unknown location and time, the persuasive evidence shows that it would be so substantially diluted by the ground water that it would neither cause nor contribute to violations of surface water quality standards. Further, the persuasive evidence, consisting of Weaver's "worst case" analysis of nutrient loading from the effluent discharge, which assumed no dilution by ground water, establishes that even if the effluent——which will be treated to AWT standards——were discharged directly into surface waters, it would meet the applicable nutrient criteria. Finally, Petitioners' claim assumes that the effluent will be discharged into surface waters. However, as discussed above and in greater detail below, to the extent the effluent ultimately may be discharged to surface waters, such discharge would be indirect, so would not be subject to statutory and rule provisions requiring establishment of a mixing zone. For these reasons, Petitioners failed to prove that KWRU violated any applicable law or rule by not requesting and obtaining a mixing zone for the discharge of the effluent through the injection wells. Class V Injection Wells in Monroe County Petitioners also allege that issuance of the Permit at Issue violates rule 62-528.630(7), which requires all Class V Group 3 domestic wastewater injection wells in Monroe County to provide reasonable assurance that operation of the well will not cause or contribute to a violation of surface waters standards as defined in chapter 62-302. As discussed above, the credible, persuasive evidence establishes that the operation of the wells as authorized under the Permit at Issue will not cause or contribute to violations of surface water quality standards codified in chapter 62-302. Accordingly, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it violates rule 62-528.630(7). Antidegradation Petitioners contend that the Permit at Issue must be denied because KWRU failed to provide reasonable assurance that the injection of effluent will not violate the antidegradation requirements applicable to surface waters codified at rules 62- 4.242, 62-302.300, 62-302.530(47)(a), and 62-302.700(1). This contention lacks merit. As more fully discussed below, the antidegradation requirements in these rules apply only to a direct discharge to surface waters, which is not present in this case. Here, the evidence clearly establishes that the injection wells do not directly discharge effluent into surface waters. It is undisputed that the effluent will be injected from the wells into Class III ground water, where it will migrate through the subsurface strata. Although it is likely that, due to a "connection" between ground water and surface waters, the effluent ultimately will reach surface waters at some unknown location or locations at some unknown time, this constitutes an indirect discharge, which is specifically excluded from the term "discharge of a pollutant." Fla. Admin. Code R. 62-620.200(13). However, even if the antidegradation rules did apply to the discharge of the effluent through the injection wells, Petitioners failed to prove that the discharge would degrade surface waters. As discussed above, the credible, persuasive evidence establishes that the surface waters in the Florida Keys, including those in and around Stock Island and Key West, currently meet the narrative and/or nutrient criteria, as applicable, and that effluent discharged through the injection wells will be treated to AWT standards, substantially reducing the facility's total nutrient loading below current levels. Thus, the credible, persuasive evidence established that, even in a "worst-case" scenario, which assumes no dilution of the effluent by ground or surface waters, the effluent still would not cause or contribute to a violation of the narrative or numeric nutrient criteria. As discussed above, the credible, persuasive evidence showed that, in fact, the effluent will be very substantially diluted by the ground water into which it is injected, and will be further diluted if and when it ultimately reaches surface waters. For these reasons, Petitioners failed to prove that KWRU did not provide reasonable assurance that the disposal of the effluent through the injection wells would not degrade surface waters, in violation of rules 62-4.242, 62-302.300, 62- 302.530(47)(a), and 62-302.700(1). Alleged Violation of Ground Water Standards Petitioners allege that KWRU did not provide reasonable assurance that the injection wells would not violate applicable ground water standards. Petitioners further allege that there is an underground drinking water source under Stock Island. In that case, more stringent ground water quality and injection well rule standards would apply to operation of the injection wells. Petitioners did not present any credible, persuasive evidence to support these allegations. The persuasive evidence establishes that although there is a fresh water lens under Stock Island, it is not classified as an underground source of drinking water52/ due to its substantial variability in horizontal and vertical extent, which renders the salinity levels highly variable. Thus, the ground water at Stock Island is classified as Class G-III ground water which is non-potable ground water having a total dissolved solids content of 10,000 mg/L or greater, or having a total dissolved solids content of 3,000 to 10,000 mg/L and having been determined to have no reasonable potential as a future source of drinking water or designated by rule as an exempted aquifer. Only the minimum criteria for ground water, known as the "free-from" standards, apply to Class G-III ground water. Fla. Admin. Code R. 62-520.430(1). These criteria require that at all times and in all places, ground water be free from discharge components in concentrations that are carcinogenic, teratogenic, mutagenic, or toxic to humans; acutely toxic within surface waters affected by ground water; pose a serious danger to the public health, safety, or welfare; create or constitute a nuisance; or impair the reasonable and beneficial use of adjacent waters. Fla. Admin. Code R. 62-520.400. There is no evidentiary basis on which to infer that the effluent from Expanded Wastewater Facility that is disposed through the injection wells will violate the free-from standards KWRU's many years of effluent monitoring at the Existing Wastewater Facility show that the effluent does not violate these standards. Further, David Rhodes, a Florida-licensed P.G. employed by DEP, credibly testified that a violation of the free- from standards necessarily would entail the presence of toxic materials in KWRU's effluent and that there would be immediate and dramatic effects on the flora and fauna at the golf course, where reclaimed water is reused for irrigation. Since such effects never have occurred, it is reasonable to infer that the effluent from the Expanded Wastewater Facility will not violate the free-from standards.53/ Additionally, as previously addressed, the credible, persuasive evidence demonstrates that no surface water quality violations will result from installation and operation of the injection wells as part of the Expanded Wastewater Facility. Accordingly, the reasonable and beneficial use of adjacent waters will not be impaired due as a result of the injection wells. Petitioners also claim that due to inadequate treatment by the Expanded Wastewater Facility, the effluent disposed in the injection wells will contain unacceptably high levels of bacteria and viruses. The persuasive evidence establishes that KWRU provides high-level disinfection prior to injecting the effluent or sending the reclaimed water for reuse at the golf course. Historical monitoring data shows that KWRU's effluent complies with applicable microbial standards, and unrebutted evidence consisting of quality-related beach closure data for the Florida Keys, gathered as part of the Department of Health's Healthy Beaches monitoring program, indicates that no beach closings in the Florida Keys ever have been attributed to KWRU's Existing Wastewater Facility. Petitioners did not prove that KWRU failed to provide reasonable assurance that operation of the injection wells authorized as part of the Project will not result in violations of applicable ground water standards. To the contrary, KWRU provided reasonable assurance that the effluent from the Expanded Wastewater Facility disposed in the injection wells authorized as part of the Project will not violate any applicable ground water standards. Alleged Water Quality Violations Due to Reuse System Petitioners allege that KWRU did not provide reasonable assurance that the storage of up to 1 MGD of reclaimed water in the reuse system storage ponds on the Key West Golf Club golf course will not cause or contribute to a violation of surface water quality standards and ground water standards. Specifically, Petitioners posit that, because the ponds are unlined, reclaimed water from the Expanded Wastewater Facility will leach from the ponds into the ground water and reach surface waters, violating surface water quality standards and ground water standards and negatively impacting human health through high levels of microbial pathogens, pharmaceuticals, and personal care products. Petitioners further allege that discharge of reclaimed water from the ponds into the ground water could mobilize constituents of concern from the Key West Landfill and a closed waste-to-energy facility, both of which are near the golf course, ultimately resulting in surface water quality standards and ground water violations. In support of these contentions, Petitioners presented the testimony of Scott Zednek, who testified that the reclaimed water, which is fresher than the surrounding ground water, may leach from the ponds into the ground water, and thereafter potentially may reach surface waters. According to Zednek, this leaching could occur because the ponds are unlined. Additionally, Zednek opined that, because there is a closed landfill near the golf course, the reclaimed water leaching from the reuse system ponds could mobilize and spread contaminants from the landfill. The persuasive evidence demonstrates that storage of the reclaimed water in the reuse system ponds will not result in violations of ground water standards or surface water quality standards. Although the golf course ponds are unlined in the sense that a high-density polyethylene or impermeable clay liner has not been installed on the bottom and sides of the ponds, over the years, marl has formed on the bottom and sides of the ponds, creating an aquitard that substantially confines the reclaimed water to the ponds, rather than allowing it to readily leach into the ground water. Further, the reclaimed water generally is less saline than the ground water underlying the course, so tends to "float" on top of, rather than readily mixing with, the denser, more saline ground water. Additionally, the evidence shows that years of historical ground water monitoring data obtained through monitoring wells on the golf course near the reuse system ponds showed no ground water standards violations as a result of storing reclaimed water from KWRU in the ponds.54/ Because the amount of reclaimed water being sent to the reuse storage ponds is not being changed by the Project, and the nutrient levels in the reclaimed water are being through AWT, there is no factual basis from which to infer that storage of the reclaimed water in the pond will result in violations of ground water standards or surface water quality standards. The persuasive evidence also does not support Zednek's view that reclaimed water leaching into the ground water from the storage ponds will mobilize pollutants under the nearby landfill. As discussed above, the persuasive evidence establishes that, due to the aquitard, there will be very little leaching of reclaimed water into the ground water, and even if such leaching did occur, there would be very little mixing of the reclaimed water with the more saline ground water. As such, there is no demonstrated factual basis on which to infer that reclaimed water will flow under, and mobilize and spread pollutants from, the landfill. Further, the evidence establishes that the predominant ground water flow direction under Stock Island is to the south- southeast. Since the landfill is located north of the reuse system ponds, any reclaimed water that did enter ground water would flow south-southeast, away from the landfill. Zednek also opined that if the storage ponds overflowed, the reclaimed water could run off into surface waters, resulting in surface water quality violations. However, the evidence establishes that KWRU will only send as much reclaimed water to the reuse storage ponds as the Key West Golf Club requests, so any assertion that the ponds will overflow is speculative. Further, even if the ponds were to overflow, Petitioners did not show that the reclaimed water would flow into surface waters, or that it would violate surface water quality standards if it were to flow into surface waters. Petitioners did not prove that KWRU failed to provide reasonable assurance that the storage of reclaimed water in the reuse system storage ponds at the Key West Golf Club will not violate any ground water standards. Stated another way, KWRU provided reasonable assurance that the storage of reclaimed water in the reuse system ponds at the Key West Golf Club golf course will not cause or contribute to violations of ground water standards or surface water quality standards. Applicability of AWT to Existing Wastewater Facility Commencing January 1, 2016, the two new treatment trains authorized by the Permit at Issue must meet the AWT standards. These treatment trains are authorized to treat wastewater to specified secondary standards through December 31, 2015. Petitioners assert that the Permit at Issue must be denied because the two new treatment trains should be required to meet AWT standards immediately upon operation, and that allowing the new treatment trains to meet secondary standards through December 31, 2015, violates section 403.806(10) and rule 62- 620.620(4). Sections 403.086(10)(c) and (d) expressly impose the AWT standards on all new or expanded domestic wastewater discharges after December 31, 2015. Accordingly, the Permit at Issue is completely consistent with the statute. Further, the Permit at Issue does not violate rule 62- 620.602(4). That rule requires a wastewater facility permit applicant to make certain specified demonstrations when a permit is renewed, revised, or reissued having a less stringent effluent limitation than contained in a previous permit. Although the Existing Permit states that the Existing Wastewater Facility has been modified to meet the AWT standards, it further states: "[t]he extended aeration process will be switched to the AWT nutrient removal system prior to January 1, 2016." The clear import of this statement is that the AWT standards are not required to be met until January 1, 2016, consistent with section 403.806(10). Because the Permit at Issue also requires the new treatment trains to meet the AWT standards commencing on January 1, 2016, the Permit at Issue does not impose a less stringent effluent limitation than that imposed by the Existing Permit; accordingly, KWRU is not required to make the so-called "anti-backsliding" demonstrations set forth in rule 62- 620.620(4). Furthermore, it is undisputed that the new treatment trains will not be constructed and operational before January 1, 2016; thus, as a practical matter, the new treatment trains must meet the AWT standards immediately upon going into operation. Thus, Petitioners have not shown that the Permit at Issue should be denied on the basis that it violates section 403.806(10) and rule 62-620.620(4). Petitioners' Standing As noted above, Petitioner Halloran, resides in Key West, Florida. His residence fronts on the water and he owns a boat. Halloran and his family use and enjoy the waters around Key West for swimming, fishing, kayaking, and other in-water recreational uses, eat local-caught seafood, and engage in nature photography. Halloran also owns rental properties that front on the water, and he owns and rents out dock space for houseboat mooring. He is a member of Last Stand. Halloran has challenged the Permit at Issue because he is concerned that the increased discharge of effluent from the Project down the injection wells will degrade the waters around Key West where he and his family engage in in-water recreational uses. He also is concerned that the increased effluent discharge, particularly nutrients, will harm the seagrasses, coral reefs, and the benthic communities in the waters around Key West. Halloran read the initial petition prepared and filed in this proceeding, and he skimmed the Amended Petition specifically to determine the changes from the initial Petition.55/ He acknowledges that he does not completely recall the entire contents of the initial petition or the Amended Petition. Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Naja Girard D'Albissin, a member of the Board of Directors of Last Stand, appeared on behalf of Last Stand. D'Albissin testified that Last Stand currently has approximately 105 members. Last Stand's mission is to promote, preserve, and protect the quality of life in Key West and the Florida Keys, with particular emphasis on protecting the natural environment. Last Stand historically has engaged in environmental advocacy directed toward governmental entities and engaged in litigation opposing activities that its members believe would harm the natural environment. In July 2014, Last Stand's Board of Directors voted to challenge the Permit at Issue. Respondent DEP stipulated that 52 members of Last Stand spend time or reside in Monroe County, 50 members enjoy the waters and natural environment of the Florida Keys, and 50 members believe that their use and enjoyment of the natural environment and economic interests in Monroe County will be adversely affected by the Project. Last Stand tendered, for admission into evidence, affidavits of some of its members attesting to the substantial interests they contend will be injured by the Project. However, Last Stand had refused to allow Respondents to engage in discovery regarding these members' alleged substantial interests; accordingly, the undersigned did not allow these members to testify at the final hearing.56/ The affidavits were excluded from admission into evidence as unsupported hearsay. See § 120.57(1)(c), Fla. Stat. Entitlement to Permit at Issue KWRU met its burden under section 120.569(2)(p) to present a prima facie case demonstrating entitlement to the Permit at Issue by entering into evidence the applications and supporting materials for the Permit at Issue for the Project. Additionally, KWRU presented persuasive, competent, and substantial evidence beyond that necessary to meet its burden under section 120.569(2)(p) to demonstrate its entitlement to the Permit at Issue. Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding to demonstrate that the Project does not meet all applicable statutory and rule requirements. Furthermore, on rebuttal, KWRU and DEP thoroughly addressed and rebutted the grounds that Petitioners allege justify denial of the Permit at Issue. The persuasive evidence demonstrates that the Project meets all applicable statutory and rule requirements. Accordingly, KWRU is entitled to issuance of the Permit at Issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2016.
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's "groundwater monitoring plan," embodied as a condition in the present operating permit, should be modified at the behest of the Department of Environmental Regulation.
Findings Of Fact On October 2, 1985, the Department issued to Charlotte County a permit to operate a Class I Sanitary landfill, pursuant to Section 403.087 and 403.707, Florida Statutes. A groundwater monitoring plan was part of that permit. One of the purposes of the groundwater monitoring plan was to detect any leachate plume of pollutants which might migrate off the site of the landfill in the groundwater. In accordance with the groundwater monitoring plan, as part of its conditions, the landfill has four monitoring wells, MW-1 - MW-4. One of those monitoring wells, MW-1, was established as a background well. Two of the monitoring wells, numbers 2 and 4, were installed as "interceptor" and "intermediate" wells. The fourth monitoring well is a "compliance well." The purpose of the background well at the landfill site is to determine the quality of the groundwater as it comes onto or enters the property subject to the operating permit. Specific condition number 2 of the monitoring plan incorporated, in the permit, required that once a year, beginning with the first quarter, sampling wells MW-1 and MW-2 should be analyzed for certain synthetic, organic compounds. Eight synthetic, organic compounds (SOCs) were tested for in accordance with Rule 17-22.104(1)(g), Florida Administrative Code. Those compounds were as follows: Trichloroethylene; Tetrachloroethylene; Carbon Tetrachloride; Vinyl Chloride; 1, 1, 1-Trichloroethane; 1, 2-Dichloroethane; Benzene; and Ethylene-dibromide. On December 9, 1985, the Department received the results of the chemical analysis performed by its laboratory in Tallahassee on the samples collected by district personnel on August 5, 1985. Those test results indicate the presence of the following compounds in well MW-1: Ethylbenzene at a concentration of 1.0 micrograms per liter, Methylenechloride at a concentration of 4.5 micrograms per liter, Trichloroethane at a concentration of 3.2 micrograms per liter, Toluene at 2 micrograms per liter, Xylene at 2.4 micrograms per liter, and Acetone at 40 micrograms per liter, as well as other "purgables" at an aggregate of 30 micrograms per liter. On the basis of this analysis, the Department informed the County that it would modify the County's groundwater monitoring plan by requiring it to monitor for "purgables", (synthetic, organic compounds) in all four wells on a quarterly basis. The original groundwater monitoring plan had required monitoring for the eight original SOCs in two of the four wells on an annual basis. This proposed modification would thus modify the conditions of the landfill operation permit held by the County. Since the samples taken on August 5, 1985, further tests have been performed on water samples taken from the four subject wells at the landfill site by both the County and the Department. On December 9, 1985, the County obtained water samples from wells MW-1 and MW-2, which were analyzed for the eight primary SOCs enumerated in the original water monitoring plan. That analysis showed the following: MW-1 1, 1, 1-Trichloroethane - 1.8 micrograms per liter MW-2 1, 1, 1-Trichloroethane - 4.1 micrograms per liter 1, 2-Dichloroethane - 1.1 micrograms per liter The Department took water samples on January 16, 1986, from all four wells. Results of the analyses for SOCs showed that as of that date, MW-1, which had been the well testing "positive," which resulted in the proposed change in the permit and monitoring plan was, on January 16, free of synthetic, organic compounds. Wells MW-2 and MW-3 were also free of purgables. The analysis of water sample from well MW-4 showed that it contained 4.67 micrograms per liter of Benzene, 1.58 micrograms per liter of Chlorobenzene, and 8.27 micrograms per liter of 1, 2- Dichloroethane. Sampling the wells MW-1 and MW-2 on March 13, 1986, the County analyzed for the complete list of "purgables" or SOCs with the result that well MW-1 was shown to contain 1.8 micrograms per liter of Ethylbenzene and 2.7 micrograms per liter of Toluene. Well MW-2 contained 1.3 micrograms per liter of Ethylbenzene and 2.0 micrograms per liter of Toluene. Almost two months later, on May 5, 1986, the Department sampled wells MW-1, MW-3 and MW-4, finding that MW-1 contained no purgables; MW-3 contained 1 microgram per liter of Methylenechloride (an isolated occurrence of this compound); and well MW-4 contained 1 microgram per liter of Chlorobenzene, 2 micrograms per liter of 1, 3-Dichlorobenzene, 10 micrograms per liter of Toluene, 2 micrograms per liter of Cis-1, 2, Dichloroethane and 6 micrograms per liter of "other purgables. Thus, it can be seen that in the August 1985 test, the first monitoring well tested, MW-1, contained SOCs. At the later test performed in December, that well contained SOCs in the form of Trichloroethane and yet on January 16, 1986, the well was free of detectable SOCs. On March 13, 1986, however, that well was shown to contain Ethylbenzene and Toluene. On the other hand, on the May 5, 1986, sample, the well contained no detectable purgable compounds. On the December 9 test, it can be seen that well MW-2 contained Trichloroethane and Dichloroethane and yet on January 16 was free of any detectable SOCs. However, on March 13, 1986, well MW-2 contained Ethylbenze and Toluene. Well MW-3 was free of SOCs at the December test, but on May 5, 1986, contained Methylenechloride, although in a very slight concentration, which could have resulted from contaminated testing equipment. Well MW-4 contained, in December, the above-noted concentrations of Benzene, Chlorobenzene, and Dichloroethane. On March 13, 1986, wells MW-3 and MW-4 were not tested. The Department's test of May 5, 1986, sampled MW-1, MW-3 and MW-4. On that date MW-4 contained Chlorobenzene, Dichlorobenzene, Toluene, Dichloroethane, and "other purgables." Thus, in consecutive samples taken and analyzed by the Department and the County since the date of its proposed modification of the groundwater monitoring plan, it has appeared that organic compounds detected in one sampling did not appear or were below the detection limits in subsequent analyses and yet showed up in other monitoring wells. It is especially significant, however, that well MW-4, which is the well farthest "down" the groundwater gradient and is indeed the compliance well for assessing whether the landfill is performing within the regulatory bounds of its operating permit has, whenever tested, demonstrated the presence of the above-noted contaminants. The fact that some wells demonstrate the presence of contaminants and on a later test, test negative for those contaminants was shown by the Department to likely occur because of variables attributable to rainfall. The amounts and occurrence of rainfall' can play a significant role in determining whether the concentrations in any amount exist in the monitoring wells and can determine in part what concentrations are found in samples from those monitoring wells. The compounds move through the soil or reside in the soil and the rainfall may cause certain compounds to be washed or leached out of the soil in varying amounts and at varying rates. Sampling shortly after a heavy rainfall might result in detection of certain compounds not detectable during a dry period or might increase the amounts detectable. The absence or slight concentrations of the subject contaminants in a well which increase with later samples would indicate that the leachate or contaminant "plume" in the groundwater is passing through that well. The down gradient well, MW-4, is the compliance well and is located down gradient from the perimeter ditch around the landfill. On both the samples taken in January and in May, that well was shown to be contaminated with SOCs as depicted above. Thus, it has been established that there are some leachate contaminant plumes moving in the groundwater through the location of that well, which establishes the likelihood that the leachate in the landfill will migrate off site by the flow of the groundwater. Thus, since DER issued the proposed modification of the monitoring plan, four additional groundwater samplings have revealed more SOCs at the landfill site. SOCs have been found in all wells at one time or another in detectable amounts. The presence or absence of SOCs and the varying amounts present at various sampling times at various wells is explained by variations in the migration rate of the contaminants due to variations in frequency and amount of rainfall percolating into and flowing through the substrate in which the wells are located. Groundwater in the area of the landfill is not well-protected from waste contamination. The landfill is located in an area where the groundwater table is one to two feet above the surface level during the wet season and only four to five feet below the surface level in the dry season. The landfill is not lined with clay or another impervious or semi-impervious material which could retard the migration of contaminants from the landfill itself into the groundwater acquifer. Because of this, ground water can migrate upward into the waste in the landfill during the wet season and the waste in the landfill can percolate into the groundwater acquifer in a downward and outward direction during the dry season. Additionally, the south and west slopes of the landfill are exposed and waste is thus exposed to the water contained in the perimeter ditch around the landfill, which water is connected hydrologically to the groundwater acquifer. The landfill is the only public solid waste disposal site in Charlotte County and thus receives all manner of waste, including some hazardous waste. Leachate contaminant plumes have already developed on the landfill site and may be in the process or may already have migrated off the site. This site is the only municipal landfill in the seven-county South Florida District of the Department where the SOCs are being detected in the groundwater. The groundwater in the area outside the landfill is designated as G-II, which is usable as a drinking water source. It is appropriate to sample the groundwater more frequently in the vicinity of such a landfill when that groundwater is designated as a drinking water supply. Although well number 1 was originally designated as a background well to check the background chemical status of the water before it migrates down gradient to the landfill site, that well, although located generally up gradient of the groundwater flow, has been shown to contain SOCs which in all probability emanated from the landfill. This is because the County has periodically added water from the landfill itself into the perimeter ditch around the landfill causing groundwater flow to move in both directions laterally from the ditch. Finally, although the Petitioner contends that some of the contamination found in the samples is a result of improper testing and contamination with laboratory solvents, the potential for laboratory contamination of the samples and sampling equipment is a possible explanation (although not proven) only for those SOCs found that are common laboratory solvents. Only Methylchloride, which occurred in one isolated sample, and the compound Toluene fit into this category of possible laboratory contaminants. The remaining SOCs found in the samples are not common laboratory solvents and therefore are present in the samples due to their presence in the groundwater itself from which the sample was taken.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the modified groundwater plan proposed by the Department in the December 18, 1985, letter to Charlotte County should be adopted into the groundwater monitoring plan for the Charlotte County landfill. DONE and ORDERED this 19th day of November 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November 1986. APPENDIX - CASE NO. 86-0084 Petitioner's Proposed Findings of Fact 1 - 18. Accepted Rejected as not established by the evidence presented. Accepted, but dispositive of the material issues presented. Rejected as to its asserted import. Accepted, but not dispositive of the material issues presented. Accepted. Accepted. Rejected as not dispositive of the material issues presented. Accepted, but not in itself dispositive. Accepted. Accepted. Accepted, but not dispositive of the material issues presented. Accepted, except as to the last clause. Accepted. Rejected as to its asserted import. Accepted, but not dispositive of the materia issues presented. Respondent's Proposed Findings of Fact 1 - 20. Accepted. COPIES FURNISHED: Matthew G. Minter, Esquire Assistant County Attorney Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948 Douglas L. MacLaughlin, 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 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
