Findings Of Fact Bayfront commenced construction of the biological waste incinerator here at issue prior to March 21, 1992, the effective date of the moratorium on construction of biological waste incinerators and was exempt from that moratorium. An inspection of the premises on April 9, 1992, (exhibit 5) showed substantial work had been accomplished and the inspector concluded, and DEP's legal counsel concurred, that in order to have achieved the construction progress shown on April 9, 1992, the work had to have been commenced prior to March 21, 1992. Further, a building permit to renovate the building into which the waste incinerator was placed was issued November 12, 1991, (exhibit 7) and a building permit to install a waste incinerator was issued March 4, 1992, (exhibit 6). No contradictory evidence was submitted by Petitioner. Respondent's witnesses testified without contradiction that Bayfront's application for an operation permit was complete in all respects, including certification by a professional engineer; that all test results showed the emissions into the atmosphere were within the prescribed standards; that certain conditions contained in the construction permit as a result of the settlement agreement resolving the challenge to the issuance of the construction permit are contained in the operation permit; that those conditions exceed the conditions required by the rules for incinerators; and that Bayfront affirmatively provided the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information that the operation of the incinerator will not discharge, emit, or cause pollution in contravention of DEP's standards as contained in Rule 17-4.070(1), Florida Administrative Code. This testimony is accepted as factual. The draft permit authorizes Bayfront to burn a maximum of fifteen hundred pounds per hour of waste. Each time a test run is conducted to check the emissions, the pounds of waste burned per hour during the test establishes an upper limit on the rate of burning waste. As explained by James L. McDonald, the engineer processing air pollution applications for the Department at Transcript p. 50-51: The construction application asked for a permit at fifteen hundred pounds per hour. So the construction permit is -- the condition that we would want, the Department would normally want the test within ten percent of that fifteen hundred pounds an hour in order to go ahead and issue, if its in total compliance, to issue an operating permit at fifteen hundred pounds. Since the test came in at a reduced rate, below the ten percent, then that's why in the operating permit condition twenty-one says you're limited to the rate that we're, the test was conducted. [sic] Now, also, its interesting to note that in their test, if you look at their runs two and three -- because there are rules that say the Department could accept two runs out of three if a condition occurred that was out of their control -- if your average runs two and three, they would average within ten percent of fifteen hundred. So, as a permit processor, it even gave me some reasonable assurance that they could probably comply with the fifteen hundred. But, since the test of all three runs came in as an average of twelve fifty-one, then the operating permit included that twelve fiftyone. And like the real world out there, just like power plants, when it comes time for their annual testing, if they are at half speed, their business is down, it allows them to test at half speed. We won't require them to go up to full speed. They can test at half speed. But then they are limited there. And if they go above it at a later date they would have to retest. So they can work their way back up to where the Department has reasonable assurance that the upper limit of fifteen hundred pounds -- that's where later in condition twenty-one of the operating permit it says but in no case shall the maximum permit or burning rate of fifteen hundred pounds per hour be exceeded. Petitioner's second two grounds for challenging the issuance of the operation permit was answered by McDonald's testimony, above quoted, and this evidence was not rebutted by Petitioner. The primary thrust of the evidence presented by Petitioner was that Bayfront had somehow misled the City of St. Petersburg regarding the operation of the incinerator and had not complied with all of the City's requirements in other respects, ergo, Bayfront could not be relied on to comply with the conditions in the operation permit. This evidence is irrelevant to the determination of whether or not the operation of the incinerator complies with all of the Department rules. The conditions of the operating permit require Bayfront to submit periodic reports to the Department from which the Department can determine whether the conditions in the permit are being complied with. Furthermore, the Department requires the permittee to notify the Pinellas County Department of Environmental Management at least fifteen days prior to the date on which each formal compliance test is to begin (Permit Condition No. 22) to allow them to witness the test, if desired. The construction permit, complying with the settlement agreement, required Bayfront to adhere to more frequent testing and more extensive testing then is required by the rules for operating biological waste incinerators. All of the tests and reports submitted by Bayfront on the operation of this incinerator met all of the requirements in the construction permit and the draft operation permit.
Recommendation It is RECOMMENDED that Bayfront Medical Center be issued Permit No. AO52- 224337 to operate a biological waste incinerator at Fifth Avenue South and Eighth Street, St. Petersburg, Florida. DONE AND ENTERED this 16th day of November 1993 in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November 1993. COPIES FURNISHED: Adrian W. Helm, Esquire 925 14th Avenue North St. Petersburg, Florida 33712 Daniel N. Burton, Esquire Thomas K. Maurer, Esquire Terri L. Gillis-Tucker, Esquire Foley and Lardner 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Bay North Corporation should be issued a permit to construct a domestic wastewater treatment and disposal system at Camp Weed, Franklin County, Florida, pursuant to Chapter 403, Florida Statutes.
Findings Of Fact On February 27, 1978, Lomax Smith, a builder and developer in Tallahassee, Florida, entered into an agreement with the Protestant Episcopal Church in the Diocese of Florida to purchase some 42 acres of real property and the improvements thereon known as "Camp Weed" which is located in Franklin County, Florida. The purchase price of the property was $725,000, with an earnest money deposit of $20,000, and closing of the transaction to be on or before July 1, 1978. At the time of purchase, eight dormitory and several accessory buildings were located on the property which utilized septic tanks for sewage disposal. An existing deep well is in the northwest portion of the property for a water supply. Smith proposed to develop the property by the sale of lots, remodel some of the existing buildings, and construct new housing units. He employed the engineering firm of Broward Davis and Associates, Inc., Tallahassee, Florida, to prepare the necessary design plans and a state environmental permit application for a proposed domestic wastewater treatment plant to be located on the site. (Testimony of L. Smith, N. Smith, Exhibits 12, 13) On September 6, 1978, Smith filed an application with Respondent Department of Environmental Regulation (DER) for a permit to construct the sewage treatment plant (STP) at Camp Weed. He signed the application as owner of the property although he had not closed the purchase transaction nor acquired legal title at that time. The application and supporting plans were reviewed in the Northwest District Office of the Department of Environmental Regulation after site investigation, and it was determined that construction of the facility would be in accordance with applicable laws and regulations. A construction permit was issued to Smith for the STP on October 10, 1978, subject to certain specified conditions attached to the permit. Notification of the permit issuance was not preceded by a notice of intent to grant the permit, nor were any third parties advised of its issuance. Petitioners St. Teresa Dock Association, Inc. (then St. Teresa Dock Association) and H.S. Oven first learned of the permit issuance when their counsel was informed by Smith's counsel on November 3, 1978, that the permit had been issued. Petitioners thereafter on November 17 filed a petition for hearing with DER. (Testimony of L. Smith, Huff, Exhibits 1, 4-5, 8) Camp Weed is bounded on the north by U.S. Highway 98 and on the south by the Gulf of Mexico. The planned site for the STP is in the northeast corner of the tract which is some twelve feet above mean sea level and approximately 950 feet from the shoreline. The elevation of the property on the northwestern side is about 24 feet and is five feet in the middle. The land slopes generally toward the middle area and drains in a southerly direction to the gulf. The subdivision of St. Teresa where Petitioners' members own summer homes is located immediately west of Camp Weed. The members of the St. Teresa Dock Association, Inc., and Petitioner Hamilton S. Oven use the beach and gulf waters for boating, fishing, and other recreational purposes. About a dozen shallow wells in the St. Teresa subdivision provide drinking water for the residents. They are located over 1700 feet southwest from the site of the proposed STP. There are two ponds north of the St. Teresa area adjacent to U.S. Highway 98. An artesian well is located in the gulf about 25 feet south of the Camp Weed property. (Testimony of Huff, N. Smith, Oven, Sensabaugh, Exhibits 2,7, 9-11, 22, 24) The proposed plant is designed to provide sewage treatment for 132 housing units containing an estimated population of 3 persons per unit. A gravity flow collection system to a pumping station will produce a peak influent rate of 29,700 gallons per day with an estimated biological oxygen demand (BOD) loading of 49.6 pounds per day. A basket strainer on the influent line will remove trash. Plant operation will involve the use of aeration tanks, clarifier, chlorination, sand filter and clear well for discharge to a percolation pond. A polishing pond was originally planned, but was deleted at the suggestion of the DER because it performs the same function as the proposed sand filter. Two percolation ponds for alternate use will be construed so that the pond bottom is twelve feet above sea level. A soil test revealed that a sand layer extends under the shallow surface top soil to a depth of approximately 10 feet before reaching the shallow ground water table and that the effluent will percolate through the sand at the rate of one inch per minute. A five foot soil boring by DER failed to encounter ground water at that level and show that rate of percolation through the sand would be acceptable. The ground water table is subject to an unknown variance indepth during the wet and dry seasons of the year depending on the amount of rainfall. Although tide fluctuations may also have some effect on depth of the ground water table, the tide most likely will be of minimum influence due to the distance of the plant site from the gulf. Percolation of at least three feet through sand before reaching ground water is sufficient to meet DER policy requirements. (Testimony of Huff, N. Smith, Bishop, Exhibits 1, 3, 16-17). Based on the design of the STP, it is predicted by applicant's design engineer that there will be at least 90 percent removal of pollutants after chlorination and prior to passage of the effluent through the sand filter. The engineer predicts that after such filtration, there will be approximately 95 percent removal prior to percolation and that the effluent will then be pure enough to use as drinking water. Further purification will take place during the percolation process. The DER District Supervisor of Domestic Wastewater Permitting, who also is a professional engineer, substantially agrees with those predictions. Actual results of the treatment process can be determined, however, only after tests from monitoring wells are made during actual trial operations of the plant. It is further agreed by those experts that the average chlorine residual content in the effluent will be 0.5 parts per million. The DER supervisor therefore is of the opinion that, if the STP is properly operated, the processed effluent will not degrade ground waters, not adversely affect the wells in the St. Teresa Community or the waters of the gulf. After percolation, there is further dilution and ultimately the ground water which reaches the gulf in eight to ten days will be in a purer form than prior to introduction of the effluent. Although a twenty-year storm criterion was applied in the design of the percolation ponds, a catastrophic storm such as a hurricane was not taken into consideration since it would not be economically feasible to design for such an effect and, in any event, super dilution caused by such a storm would negate the possibility of water quality degradation. (Testimony of Huff, N. Smith, Exhibit 1) The buildup of sludge in the plant's holding tank will require removal about once a year when the plant is in full operation. The applicant will employ a certified individual to operate the plant and to remove sludge periodically to an appropriate place for disposal in an authorized manner. DER regards sludge disposal to be a matter for determination at the time application is made for an operating permit. (Testimony of Huff, L. Smith, McNeill, N. Smith, Exhibit 1) The applicant estimates that the construction of the plant and collection system will cost approximately $1,000 per housing unit for a total of $132,000. It is planned to recover this cost on the sale of lots. A condition of such purchases will be that the sewage system and treatment plant will be operated by a home owners association which is to be activated in the near future. Maintenance cost of the sewage plant will be shared by the individual members. Approximately twenty or twenty-five members are required for economical operation of the plant. (Testimony of N. Smith, L. Smith) The county zoning classification for the Camp Weed area is currently the subject of litigation by the applicant in the Franklin County Circuit Court and the result of that litigation as to permitted density of housing will determine the amount of units to be constructed by the applicant. In any event, if the applicant does not secure a county building permit, any DER construction permit would expire at the termination of the time granted therefor. (Testimony of L. Smith, Huff, Exhibit 24) At the time Intervenor Lomax Smith signed the permit application, Bay North Corporation had not been formed. It was incorporated in November, 1978, in order that Smith could obtain financing to complete the property purchase. The transaction was closed November 6, 1978, and a warranty deed to the property was issued to Bay North Corporation by the Episcopal Church in the Diocese of Florida, Inc. The deed was recorded in the public records of Franklin County on November 7, 1978. Lomax Smith is the president and principal stockholder of Bay North Corporation. Promissory notes secured by mortgages to the Southern Bank of Tallahassee and the Episcopal Diocese of Florida in the amounts of $350,000 and $362,500 respectively, were executed by Bay North Corporation on the same date. Pursuant to a request to DER from Lomax Smith on May 15, 1979, the Northwest District DER Office, on June 29, 1979, purported to transfer the permit to Bay North Corporation and extend the expiration date to September 30, 1980. (Testimony of L. Smith, Huff, Exhibits 6, 14-15, 21) The construction permit issued in October, 1978, was subject to standard and special conditions, including the requirement that the permit holder comply with county and municipal regulations prior to construction. They provided that monthly reports be furnished to the DER prior to issuance of an operation permit setting forth wastewater characteristics during a trial period of plant operation. They also required that the facility meet the treatment requirements contained in Chapter 17-3, F.A.C., including a 90 percent reduction in BOD and suspended solids based on concentration of the influent entering the plant. The conditions further provide that at the time of application for an operation permit, it must be shown that a certified operator under Chapter 17- 16, F.A.C., is retained, together with a copy of any contract for contract operation of the facility. Additionally, the conditions require that two monitoring wells be established upstream and downstream of the ponds and that quarterly ground water samples be analyzed and reported to DER. A further condition provides that a three-foot buffer zone must be maintained between the bottom of the percolation ponds and the maximum elevation of the ground water. (Exhibit 8)
Recommendation That the Department of Environmental Regulation issue the requested permit to Bay North Corporation, subject to the conditions attached to the permit issued on October 10, 1978. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of November, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: George E. Lewis, II, Esq. 316 East Park Avenue Tallahassee, FL 32303 William L. Hyde, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Ben H. Wilkinson, Esq. Pennington, Wilkinson, Gary and Dunlap Post Office Box 3875 Tallahassee, FL 32303 Alfred O. Shuler, Esq. Post Office Box 850 Apalachicola, FL 32320
The Issue The issue in this case is whether Petitioner should be issued an air construction permit authorizing its Crystal River steam generating plant Units 1 and 2 to co-fire a five to seven percent blend of petroleum coke with coal.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Florida Power Corporation (FPC), is an investor-owned public utility engaged in the sale of electricity to approximately 1.2 million customers. Among others, it operates the Crystal River Power Plant consisting of five electric-generating units in Citrus County, Florida. Units 1, 2, 4, and 5 are coal-fired, while Unit 3 is a nuclear unit. Respondent, Department of Environmental Regulation (DEP), is a state agency charged with the statutory responsibility of regulating the construction and operation of business enterprises in a manner to prevent air pollution in excess of specified limits. Among other things, DEP issues air construction permits for a limited period of time to undertake and evaluate initial operations of a business enterprise; long- term approval subsequently is available under an air operation permit. As a part of this process, and pursuant to federal law, DEP engages in a Prevention of Significant Deterioration (PSD) review to determine if non-exempt alterations to major facilities result in net emission increases greater than specified amounts. Under certain conditions, however, the use of alternative fuels or raw materials are exempted from PSD review. Intervenor, Legal Environmental Assistance Foundation, Inc. (LEAF), is a non-profit Alabama corporation licensed to do business in the State of Florida. It is a public interest advocacy organization whose corporate purposes include securing environmental and health benefits from clean air and water. Intervenor, Sierra Club, Inc. (Sierra Club), is a public interest advocacy organization incorporated in California and doing business in Florida. Its corporate purposes include securing the environmental and health benefits of clean air and water. On December 26, 1995, FPC filed an application with DEP for an air construction permit authorizing it to burn a blend of petroleum coke and coal in its existing coal-fired Units 1 and 2 at the Crystal River Power Plant in Citrus County, Florida. In the application, FPC did not address PSD review since it believed it qualified for an exemption from PSD permitting under Rule 62- 212.400(2)(c)4., Florida Administrative Code. That rule exempts from PSD review the [u]se of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. After reviewing the application, DEP issued an Intent to Deny on June 25, 1996. In that document, DEP stated that [a]ccording to information in Department files, both Units 1 and 2 operated on liquid fuel prior to January 6, 1975. Very substantial modifications of the boilers and pollution control equipment were implemented thereafter by [FPC] to convert the units to coal-firing mode. Therefore the project does not qualify for the exemption from PSD review claimed by the company. Contending that it was entitled to an exemption from PSD review and therefore a permit, FPC filed a Petition for Administrative Hearing on October 4, 1996. In its Petition, FPC generally alleged that petroleum coke is a product with characteristics very similar to coal; Units 1 and 2 were capable of accommodating coal and petroleum coke as of January 6, 1975; and contrary to the statements in the Intent to Deny, any boiler modifications and pollution control improvements to those units were minor and not substantial. The Permitting Program The PSD program is based on similar PSD requirements found in the federal Clean Air Act of 1970, as amended (the Act). The permitting program is a federally required element of DEP's State Implementation Plan (SIP) under Section 110 of the Act. DEP has fulfilled the requirement of administering the federal PSD program by obtaining approval from the Environmental Protection Agency (EPA) of state PSD regulations that meet the requirements of federal law. The requirements of the SIP are found in Chapters 62-204, 62-210, 62-212, 62-296, and 62-297, Florida Administrative Code. Chapter 62-212 contains the preconstruction review requirements for proposed new facilities and modifications to existing facilities. Rule 62-212.400, Florida Administrative Code, establishes the general preconstruction review requirements and specific requirements for emission units subject to PSD review. The provisions of the rule generally apply to the construction or modification of a major stationary source located in an area in which the state ambient air quality standards are being met. Paragraph (2)(c) of the rule identifies certain exemptions from those requirements. More specifically, subparagraph (2)(c)4. provides that a modification that occurs for the following reason shall not be subject to the requirements of the rule: 4. Use of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. The rule essentially tracks verbatim the EPA regulation found at 40 CFR 52.21(b)(2)(iii)(e)1. Therefore, in order to qualify for an exemption from PSD review, FPC must use "an alternative fuel . . . which [Units and 2 were] capable of accommodating before January 6, 1975." In addition, FPC must show that "such change would [not] be prohibited under any federally enforceable permit condition which was established after January 6, 1975." Contrary to assertions by Respondent and Intervenors, in making this showing, there is no implied or explicit requirement in the rule that FPC demonstrate that it had a subjective intent to utilize petroleum coke prior to January 6, 1975. The Application and DEP's Response In its application, FPC proposes to co-fire a five percent (plus or minus two percent) blend of petroleum coke with coal, by weight. It does not propose to make any physical changes to Units 1 and 2 to utilize petroleum coke. Also, it does not request an increase in any permitted air emission rates for the units because it can meet its current limits while burning the proposed blend rate of petroleum coke with coal. The application included extensive fuel analysis and air emissions data obtained from a DEP-authorized petroleum coke trial burn conducted from March 8 until April 4, 1995. Although it is not proposing to make physical changes to the plant, FPC applied for the air construction permit in deference to DEP's interpretation that such a permit is required when a permittee utilizes an alternative fuel. After completing his initial review, the DEP supervisor of the New Source Review program acknowledged in a memorandum to his supervisor that FPC was "entitled to a permit" but suggested that FPC be asked to "change their minds." Before the permit was issued, however, DEP changed its mind and issued an Intent to Deny on the ground that prior to January 6, 1975, Units 1 and 2 were not capable of accommodating coal or a blend of petroleum coke with coal. The Units Unit 1 has a generating capacity of 400 MW and commenced operation as a coal-fired plant in October 1966. It fired coal until March 1970, fuel oil until October 1978, and then again fired coal from June 1979 to the present. Unit 2 has a generating capacity of 500 MW and commenced operations as a coal-fired plant in November 1969. It fired coal until September 1971, fired fuel oil from December 1971 until October 1976, and then again fired coal from December 1976 to the present. Original equipment installed during the initial construction of Units 1 and 2 included the following: the barge unloader, which removes coal from barges that deliver coal from New Orleans; the stacker/reclaimer, which stacks the coal into piles and then reclaims the coal by directing it from the coal piles to conveyors that deliver it to the units; the crusher house, which has two crushers that crush the coal on the way to units down to nuggets no larger than three-quarters of an inch in diameter; the silos, which store the crushed coal; the feeders, located below the silos, which regulate the flow of coal from the silos to the pulverizers; the pulverizers, which grind the coal in preparation for combustion and then direct the pulverized coal to the burners, which are located on the corners of each unit's boiler; and the boilers, where the fuel is combusted, imparting heat to water contained in the waterwalls and thereby producing steam for electrical generation. The foregoing equipment was reflected in the plant's construction specifications and remains in operation, on site, at the plant. Components and parts of this equipment have been maintained, replaced, and repaired periodically. The original operations manual for the barge unloader, stacker/reclaimer, crushers, and conveyor systems are still kept and utilized on site. The primary fuel utilized in Units 1 and 2 is coal, although these units also co-fire from one to five percent number fuel oil and used oil. The combustion of fuel in Units 1 and 2 results in air emissions. As a result of changing regulatory requirements, there have been substantial improvements to the units' air pollution control capabilities since original construction. Existing Air Permits Unit 1 currently operates under Air Operation Permit Number A009-169341. Unit 2 operates under Air Operation Permit Number A-009-191820. Both permits were amended by DEP on October 8, 1996. Although each air operation permit contains an expiration date that has been surpassed, the permits remain in effect under DEP's regulations during the pendency of the agency's review of FPC's applications for air operation permits under the new Title V program found in Chapter 62-213, Florida Administrative Code. The air operation permits governing Units 1 and 2 contain mass emission rate limitations of 0.1 pounds/million (mm) British thermal units (Btu) or particulate matter (PM), and 2.1 pounds/mmBtu for sulfur dioxide. These mass emission rate limitations restrict the amount of each pollutant (measured in pounds) that is to be released into the atmosphere per million Btu of heat energy by burning fuel. The PM limitation is applicable to Units 1 and 2 under state regulations originally promulgated in 1972. The sulfur dioxide limitation was established in 1978 as a result of a PSD air quality analysis performed in conjunction with the permitting of Units 4 and 5. Prior to 1978, sulfur dioxide limits promulgated early in 1975 imposed a limit of 6.17 pounds/mmBtu on coal-fired operations at Units 1 and 2. Because Units 1 and 2 were subjected to a PSD air quality impact analysis along with Units 4 and 5, the units' sulfur dioxide emission limits were reduced from 6.17 to 2.1 pounds/mmBtu. The 2.1 pounds/mmBtu sulfur dioxide emission limitation applicable to Units 1 and 2 was set with the intention of assuring no adverse air quality impacts. The sulfur dioxide impacts associated with Units 1, 2, 4, and 5, after collectively being subjected to PSD air quality review, were much lower than the sulfur dioxide impacts previously associated with only Units 1 and 2. Is Petroleum Coke an Alternative Fuel? Petroleum coke is a by-product of the oil refining process and is produced by many major oil companies. The oil refineries refine the light ends and liquid products of oil to produce gasoline and kerosene, resulting in a solid material that resembles and has the fuel characteristics of coal. Both historically and presently, it has been common- place for electric utilities to rely on petroleum coke as fuel. For example, during the period 1969 through 1974, regular shipments of petroleum coke were sent to various electric utility companies throughout the United States to be co-fired with coal. In addition, DEP has issued permits for Tampa Electric Company to co-fire petroleum coke with coal. In 1987 and again in 1990, the EPA promulgated air- emission regulations which specifically define "coal" as including "petroleum coke." DEP has incorporated these regulations by reference at Rule 62-204.800(7)(b) 3. and 4., Florida Administrative Code. Given these considerations, it is found that petroleum coke constitutes an alternative fuel within the meaning of Rule 62-212.400(4)(c)4., Florida Administrative Code. Were the Units Capable of Accommodating the Fuel? Petroleum coke and coal are operationally equivalent. Petroleum coke can be handled, stored, and burned with the existing coal handling equipment at Units 1 and 2. The barge unloader, stacker/reclaimer, storage areas, conveyors, silos, crusher house, pulverizers, and burners, all installed prior to 1975, can handle petroleum coke. The equipment comprising Units 1 and 2 does not require any modification in order to burn a blend of petroleum coke with coal. Also, there will be no net impact on steam generator design or operation, and there will be no decline in performance or adverse impacts to the boilers. FPC could have co-fired petroleum coke with coal historically without making physical alterations or derating the units. Similarly, petroleum coke can be fired in Units 1 and 2 now without alterations or derating. These findings are further supported by Petitioner's Exhibits 35 and 36, which are reference books published in 1948 and 1967 by the manufacturer of the equipment installed at Units 1 and 2. They confirm that prior to 1975, petroleum coke was suitable for the manufacturer's boilers and pulverizers. Unrebutted testimony demonstrated that Units 1 and 2 could have co-fired petroleum coke with oil during the oil-firing period. Even when Units 1 and 2 fired oil instead of coal for a period of time in the 1970s, the coal-handling equipment remained in existence on-site and available for use, and both units remained readily convertible to their original, coal-firing modes. Because the plant remained capable of accommodating coal, it also remained capable of accommodating petroleum coke. In light of the foregoing, it is found that co-firing petroleum coke with coal at Units 1 and 2 could have been accomplished prior to January 6, 1975. Are there Post-January 6, 1975, Prohibitions? There is no evidence to support a finding that a federally enforceable permit condition was establshed after January 6, 1975, that prohibits co-firing petroleum coke with coal. I. Miscellaneous By letters dated February 14 and June 2, 1997, the EPA Region IV office replied to inquiries from DEP regarding the instant application. The conclusions reached in those letters, however, were based on a misapprehension of the facts in this case. Therefore, the undersigned has not credited these letters. To prove up its standing, LEAF introduced into evidence a copy of its articles of incorporation and a brochure describing the organization. In addition, it asserted that the air quality for its members would be "at risk" if Units 1 and 2 did not meet PSD standards and air emissions were "increased." Intervenor Sierra Club proffered that a substantial number of members "live, work, or recreate in the vicinity of the Crystal River Units 1 and 2, and in the area subject to the air emissions by those units," and that those members "would be substantially affected by the proposed exemption."
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 granting the application of Florida Power Corporation and issuing the requested air construction permit. DONE AND ORDERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1560 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James S. Alves, Esquire Post Office Box 6526 Tallahassee, Florida 32314-6526 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gail Kamaras, Esquire 1115 North Gadsden Street Tallahassee, Florida 32303-6327 Jaime Austrich, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Trans/Circuits is a manufacturer of electronic printed circuit boards located at 210 Newman Way, Lake Park, Florida. Trans/Circuits' manufacturing operation involves the deposition of copper on plastic boards and the use of a lead or tin etch resist in order to create an electrically conducting circuit board. In the course of the manufacturing process, rinsewaters are used which become contaminated with copper and lead from the manufacturing process. These rinsewaters undergo chemical treatment to remove the metals and other contaminants, and are then discharged into an unlined percolation pond located behind Trans/Circuits' facility. About 36,000 gallons of effluent are discharged into the pond every day. The percolation pond discharges into ground water underlying Trans/Circuits' facility which groundwaters contain less than 3000 milligrams per liter (mg/l) of total dissolved solids. Trans/Circuits uses a Havviland brand wastewater treatment system. The system at present does not provide treatment sufficient to remove copper, fluoride, and lead from the wastewater effluent in compliance with the DER class G-II groundwater standards for these metals, i.e., 1.0 mg/l of copper, 1.5 mg/l of fluoride, and .05 mg/l of lead. Trans/Circuits has exceeded the effluent limitations for copper and lead at almost all times since at least June 1984. Trans/Circuits is not likely to comply with those standards for at least six months, by Trans/Circuits' own admission. The Operating Permit Application, Case No. 83-3676 Trans/Circuits requested a hearing to contest the DER Notice of Intent to Deny the application for an operating permit. The burden of proof and burden of going forward is therefore on Trans/Circuits to show that it is entitled to issuance of the operating permit. In this regard, Trans/Circuits did not introduce into the case any evidence relating to the operating permit application and did not introduce the application, itself. Further, Trans/Circuits did not present any evidence that its installation will abate or prevent pollution, or that it can provide reasonable assurances that the system which it seeks to operate will not discharge, emit or cause pollution. The Trans/Circuits facility has never been in compliance with DER standards and cannot provide assurances that it will be in compliance at anytime in the foreseeable future. Further Trans/Circuits has been operating without an operating permit at least since October 1983. The Month-to-Month Authorization, Case No. 84-0191 On September 17, 1982, DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Trans/Circuits. The NOV alleged that Trans/Circuits violated provisions of Chapter 403, Florida Statutes, and DER rules in operation of its industrial waste water treatment and disposal system. Trans/Circuits requested and received an informal conference to discuss the allegations of the NOV, which conference was held on October 20, 1982. At the informal conference, DER and Trans/Circuits reached agreement on a resolution of the issues raised by the NOV. On November 4, 1982, a Consent Order was issued by DER, setting forth the parties' agreement and requiring Trans/Circuits to perform certain corrective actions. In the consent order, Trans/Circuits agreed not to discharge industrial wastewaters into waters of the state "without an appropriate and valid permit authorizing such discharge or having otherwise obtained Department authorization." At the time the consent order was issued, Trans/Circuits was operating pursuant to a DER construction permit which was issued for the purpose of allowing Trans/Circuits to make certain modifications to its treatment system to bring the system into compliance with DER effluent standards. The construction permit expired in January 1983, but Trans/Circuits continued to operate. About one month after the construction permit expired, DER notified Trans/Circuits that it was violating the consent order by operating without DER authorization. The parties met to discuss the matter, and agreed that Trans/Circuits would cease operation for one week to conduct bench-scale testing to identify problem areas and possible corrective actions. Trans/Circuits did cease operation and conduct the testing as agreed. Trans/Circuits presented the data resulting from their bench scale testing to DER, and represented that it had identified problem areas that needed correction. DER evaluated the data and agreed to allow Trans/Circuits to operate for a limited time to gather plant effluent quality data which would form the basis for DER's decision whether to allow operation to continue. DER did not take enforcement action to have Trans/Circuits cease operation at that time because DER wanted to give Trans/Circuits time to show that it could comply with the effluent standards as it claimed it could. On March 23, 1983, DER notified Trans/Circuits that there had been a significant improvement in the plant's ability to produce effluent of acceptable quality, and DER authorized Trans/Circuits to make modifications in order to improve effluent quality. DER at that time gave Trans/Circuits authorization to operate for an indefinite period, with the condition that DER would rescind its approval if the program of sampling and system approval did not continue. Trans/Circuits accepted the authorization on DER's terms. On April 12, 1983, DER granted Trans/Circuits' month-to-month authorization to operate ". . . provided continued improvement is made in your system's operation and the Department can reasonably anticipate system compliance." This authorization was in response to a request from Trans/Circuits for 90-day temporary operating approval in order to demonstrate that the system could comply with state standards. By letter dated October 5, 1983, DER withdrew its authorization for month-to-month operation of Trans/Cirouits' facility because it believed that compliance with state standards could no longer be reasonably anticipated. Despite Trans/Circuits' best efforts, the facility was not in compliance and DER had no assurance that continued operation would bring the facility into compliance within a reasonable amount of time. Trans/Circuits has never ceased operation since DER withdrew its month-to-month operating approval. Trans/Circuits has not had a DER permit for construction or operation of the facility since the expiration of their last construction permit in January, 1983. At a meeting on December 1, 1983, Trans/Circuits' general manager admitted that he was aware that Trans/Circuits' was in violation of the terms of the consent order by continuing to operate without DER authorization. Analysis of Trans/Circuits' plant effluent for April 1983, shows that average lead levels were 0.21 parts per million (ppm) (or mg/l), average fluoride levels were 2.45 ppm, while average copper levels were 0.51 ppm. These were the effluent levels existing when Trans/Circuits was granted its month-to- month approval for operation. Since the month-to-month authorization was granted, the majority of Trans/Circuits' effluent samples have not complied with the DER standards for lead, copper, and fluoride. Since April 16, 1984, five percent or less of Trans/Circuits' effluent samples have complied with the effluent standards for lead and copper. In the week or two prior to hearing, the majority of effluent samples contained lead at a concentration of 0.2 to 0-5 ppm (with some higher), and contained copper at a concentration of between 2 and 3.5 ppm (with some higher). The most recent data available indicate that Trans/Circuits is not in compliance with the effluent standards for lead, copper and fluoride. Daily average effluent concentrations for lead and copper are significantly greater now than they were when DER issued its month-to-month authorization. Groundwater samples just outside Trans/Circuits' property show violations of the DER standards for lead. The evidence shows that Trans/Circuits effluent quality has not improved since April 1983. Effluent concentrations of lead and copper have actually increased significantly since October 1983, when DER withdraw its month-to-month authorization. Trans/Circuits does not even expect to know before December 1984, whether its present system can attain compliance with effluent standards. The Construction Permit Application On March 8, 1984, Trans/Circuits applied to DER for a permit to construct modifications and improvements to the existing Havviland wastewater treatment system. Although the stated purpose of the requested construction was to upgrade the system to achieve compliance with the Riviera Beach Sewer Use Code so as to allow a sewer tie-in, Trans/Circuits had abandoned that purpose by the time of the hearing. Trans/Circuits now seeks to upgrade the systems so that the effluent can comply with the applicable standards for discharge to ground water. When DER received the application, it was reviewed by a DER engineer to see if it was complete. The engineer determined it was not complete, and notified Trans/Circuits on April 6, 1984, that additional information was needed to complete the review process, all of which information was necessary to determine whether a permit should be issued for the requested construction. Trans/Circuits' general manager objected to the request for additional information, claiming that all the requested information was not necessary to review the application. However, at the request of Trans/Circuits' counsel, a meeting was held between representatives of Trans/Circuits and DER to discuss the request for information that was needed for review of the application. Trans/Circuits thereafter, withdrew their objections, and agreed to provide the requested information. Trans/Circuits responded to DER's request for additional information on June 27, 1984, at 3:30 P.M. the day prior to hearing. Trans/Circuits delivered a packet of information to DER at that time that purported to be the requested information. Also at that time, however, Trans/Circuits told DER that it had already performed some of the construction for which a permit was sought, and that it was not sure what, if any, of the remaining construction would be undertaken. The information that was submitted to DER was not all of the information requested by DER. No flow diagram was submitted and waste effluent analysis was lacking. Without this information, it is impossible to determine whether or not reasonable assurance has been provided by Trans/Circuits that DER standards will be met. Even if all of the requested information had been submitted, DER could not issue a construction permit to Trans/Circuits because its future construction plans are now only speculative. Trans/Circuits does not know what modifications it intends to construct, or when exactly such modifications will be made. All that is certain is that Trans/Circuits does not intend any longer to construct the modifications for which it made application. DER evaluates applications to determines whether all proposed modifications works as a system. Trans/Circuits is the applicant for this permit and has the burden of showing that it is entitled to issuance of the permit. Here Trans/Circuits failed to present any evidence of what construction it actually plans to do, let alone that the purposed construction meets the criteria and that it is entitled to the permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida Department of Environmental Regulation: Denying Trans/Circuits application for an operation permit; Denying Trans/Circuits application for a construction permit; and Withdrawing the month-to-month authorization for Trams/Circuits' operation. DONE and ENTERED this 19th day of September, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 September, 1984.
The Issue The first issue is whether Petitioner, Jacqueline M. Lane (Lane) has standing. The second issue is whether International Paper Company (IP) provided reasonable assurances it has the ability to meet the conditions of the existing industrial wastewater permit for the wastewater treatment facility at the paper mill in Cantonment, Florida, pursuant to Rule 62- 620.340(3), Florida Administrative Code. A final issue is whether Lane litigated this matter for an improper purpose.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: The Parties The Department is charged with the responsibility for determining whether to approve the Application for transfer of permit number FL0002562-002-IWF/MT from Champion to IP. IP is a corporation authorized to do business in the State of Florida. IP operates a bleach kraft fine paper mill in Cantonment, Florida, formerly operated by Champion. Lane is a citizen of the State of Florida who lives on Perdido Bay. Application for Transfer of Industrial Wastewater Permit Number FL0002526-002-IWF/MT In June 2000, IP notified the Department it was acquiring Champion as a wholly owned subsidiary. IP took over operation of the facility in Cantonment on January 1, 2001. At that time, the companies had fully merged. On January 19, 2001, IP timely submitted an Application for Transfer of a Wastewater Facility or Activity Permit (Application) and advised the Department that "the permittee name for the pulp and paper mill in Cantonment, Florida[,] has been changed from 'Champion International Corporation, Inc.' to 'International Paper Company.'" Several wastewater permit- related documents were submitted to the Department as part of this name change. The Department processed IP's Application to transfer the facility's permit pursuant to Rule 62-620.340(3), Florida Administrative Code. "The parties agree that this matter is controlled by Rules 62-4.120 and 62-620.340, F.A.C., regarding the transfer of the permit. The parties [did not agree] upon what conditions of the combined permits are applicable to determine whether the Department has received 'reasonable assurances that the conditions of the permit will be met.' Rule 62-620.340(3), F.A.C." Rule 62-620.340(3), Florida Administrative Code, provides: "The Department shall allow the transfer under subsection (2) of this section unless it determines that the proposed permittee cannot provide reasonable assurance that conditions of the permit will be met. The determination shall be limited solely to the ability of the proposed permittee to comply with the conditions of the existing permit, and it shall not consider the adequacy of these permit conditions." (Emphasis added). This proceeding does not involve an enforcement action or consideration of whether the wastewater permit, and related documents, should be renewed. Champion's renewal application is under consideration by the Department. The parties agree that the documents described in Findings of Fact 10-19, infra, set forth the conditions of the permit number FL0002526-002-IWF/MT at this time. These documents are listed below: November 15, 1995, DEP Order (combining the NPDES permit and the State- issued wastewater permit) April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit) January 3,1983, EPA NPDES Permit December 13, 1989, DER Temporary Operating Permit December 1, 1989, DER Consent Order December 12, 1989, DER Variance The Permit(s), Consent Order, Variances, and Related Permit Documents Before May 1, 1995, in order to operate the wastewater treatment facility at the mill in Cantonment, both state and federal permits were required. The Department or its predecessor agency, the Department of Environmental Regulation (DER), issued state permits pursuant to Sections 403.08 and 403.088, Florida Statutes, and applicable rules. The United States Environmental Protection Agency (EPA) issued federal National Pollutant Discharge Elimination System (NPDES) permits pursuant to 40 Code of Federal Regulation Section 124.15. As a result of EPA's delegation of its NPDES authority to the Department in 1995, only one permit is now required. The 1995 Memorandum of Agreement between EPA and the Department does not allow the Department to modify a permit that has been administratively continued. Modifications to permit limits have to be made through the permit renewal process. On or about January 3, 1983, the EPA issued a NPDES permit to St. Regis Paper Company, authorizing discharge from the facility, located at the paper mill in Cantonment to the receiving waters named Eleven Mile Creek (creek). This NPDES permit contains the federal permit conditions applicable at this time. (EPA has since used the facility as a benchmark model to develop effluent guidelines for its new cluster rule.) On December 1, 1989, the DER entered into a Consent Order with Champion International Corporation. This Consent Order was issued as a result of Recommended and Final Orders issued in Perdido Bay Environmental Association, Inc. et al. v. Champion International Corporation and Florida Department of Environmental Regulation, 12 F.A.L.R. 126 (DER Nov. 14, 1989). This Consent Order allowed the continued operation of the facility. As a compliance requirement, a study report was required to include "an evaluation of technologies and treatment alternatives . . . to determine the most environmentally sound and practicable means to correct identified water quality violations caused by Champion." The studies required by the Consent Order are needed to pinpoint sources of pollutants in the creek and Perdido Bay (bay). The Consent Order has no expiration date although it is tied to the temporary operating permit (TOP) which had an expiration date of December 1, 1994. Extensive studies have been submitted to the Department pursuant to paragraph 14.A. of the Consent Order, which are necessary to trigger "the final compliance plan." This has been an ongoing process since the Consent Order and TOP were issued. The conditions in the Consent Order and TOP apply at this time. Various discharge limitations and monitoring requirements are set forth in the TOP. On December 13, 1989, DER issued a TOP, Number IT17- 156163, to the facility, which was issued in conjunction with the Consent Order. The TOP expressly relies on the Consent Order for authorization. It contains the effective state permit conditions at this time. On December 8, 1989, DER issued a Variance from water quality standards for color (transparency), iron, zinc, and the general water quality criterion for specific conductance. The standards in the Variance are part of the TOP and are effective at this time. The mill no longer needs the Variance for iron and zinc. As to those parameters, it currently operates at lower levels than under the Variance. On November 15, 1995, the Department combined the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT. The TOP and NPDES permit were administratively continued when renewal applications were filed. The Department will transfer to IP the permit documents described in Finding of Fact 9, supra. The Department will also transfer the pending permit renewal applications filed by Champion. Wastewater Treatment Facility at the Paper Mill in Cantonment, Florida In the past, Champion owned and operated a 1400-ton per day bleach and kraft pulp and paper mill in Cantonment. The operation is now conducted by IP. The paper mill treats its effluent from industrial activities at an on-site wastewater treatment facility (facility). Stormwater that falls on the industrial portion of the mill is also processed through the facility. The mill is required to and takes monthly samples from the creek for a few parameters, e.g., DO and pH, to provide data to the Department for use in developing possible changes to effluent limitations in a final compliance plan. There is an installed structure that continuously measures the flow of the effluent at the end of the facility's treatment system. This point, i.e., where the flow is measured, is called the Parshall Flume which is the compliance point for the facility. The effluent at Parshall Flume is automatically sampled each day, analyzed, and reported on a monthly basis to the Department. The analyses are reviewed and compared to the effluent limitations for a particular permit. The treated effluent is discharged from the Parshall Flume through a pipe to natural wetlands. In this wetland area, the treated effluent combines with several streams, non- processed stormwater, and runoff from land south and west of the facility. Runoff from residential areas and areas west of the mill, including the City of Cantonment, also flows into this area. The IP mill is not the only source of discharge into this area. After passing through the natural wetlands, the treated effluent runs through a pipe that discharges into the creek from below the surface. This point is about a half-mile from the facility. It is called the "boil" because the water from the pipe boils up into the creek. The "boil" is not a compliance point. On occasion, a Department inspector has taken water samples at the boil. Each time, his sampling has shown water quality standards were met at the boil. At the boil, the water flowing into the creek from the pipe contains treated effluent and drainage from areas not associated with the mill. From the boil, the creek flows a distance of fourteen miles to Perdido Bay (the bay). At the boil, there is also stormwater runoff and drainage from residential areas flowing into the creek in addition to the water from the pipe. Along the sides of the creek to the bay is a large drainage basin, which includes agricultural and residential runoff that flows into the creek. The boil, which is non-processed stormwater of the creek, could be contaminated from non-IP sources. Sources of pollutants in the bay include residential and agricultural stormwater runoff, Perdido River, and the creek. The Escambia County Utility Authority (ECUA) also has a treatment plant that has a discharge into the bay. Saltwater intrusion and runoff from development are additional sources of pollutants in the bay. Lane takes samples at the boil and most recently in May and June of 2001. Her measurement of dissolved oxygen (DO) was approximately 2.6 and for specific conductance, between 1600 and 2000. Lane also samples the water at a bridge (279A) two miles down the creek from the boil. Lane testified regarding bacteriological quality at the boil or further down stream, that fecal coliforms, including the bacteria Klebsiella, were present. Lane is not a certified sampler. She does not have the required quality control/quality assurance program. Lane does not know the Department requirements to sample dissolved oxygen. She could not describe an approved standard for such sampling. Surface Water Quality Standards Unless otherwise provided through relief mechanisms, discharges into surface waters must meet the minimum water quality standards set forth in Rules 62-302, Florida Administrative Code. Relief mechanisms include variances, consent orders, and temporary operating permits. The Department has issued variances, consent orders, and temporary operating permits to allow permit holders time to respond to changes in water quality standards and related regulations that reflect changes in understanding of environmental impacts to water bodies. Permit Conditions The permit conditions do not require compliance with all the water quality criteria in Chapter 62-302, Florida Administrative Code, for water quality parameters. The Department has not yet agreed on "final treatment solutions" it can require under the Consent Order. See, e.g., Finding of Fact 49. Specific deviations from the surface water quality standards in Chapter 62-302, Florida Administrative Code, are authorized by the Consent Order, TOP, variance, and NPDES permit. The specific effluent discharge limitations in the TOP and NPDES permit, are for BOD5, TSS, iron, specific conductance, pH, and zinc. (The reference to condition 12 in paragraph 25 of the TOP has not been amended.) Several of the effluent limitations (e.g., specific conductance) were granted by the Variance. Paragraph 26 of the TOP specifies the monitoring and frequency requirements for the monitoring at the Parshall Flume. This monitoring information can be used by the Department to pinpoint sources of pollutants in the creek and in order to establish numerical, water-quality based effluent limitations for those sources. General Condition 5 of the TOP does not per se impose on the mill the duty to meet all water quality standards in Chapter 62-302, Florida Administrative Code. The TOP authorizes "a certain amount of pollution" and "certain relief." The TOP further established a "compliance schedule" for Champion to study the impacts of the discharge. However, the Department rules allow for reopening of the TOP and changing the permit conditions to reflect new evidence causing a concern regarding pollution. Here, the Department has not reopened the TOP. The permit, including the TOP and Consent Order, allows the mill a period of time to come into compliance with all minimum water quality standards. When a final permit is eventually issued, the facility will have to meet these standards absent some express relief mechanism at that time. IP Provided Reasonable Assurances of Its Ability to Meet Permit Conditions The Department employee who reviewed IP's Application to transfer the permit is an expert in environmental engineering. At the time he reviewed the Application, he was familiar with the existing permit conditions. As part of his review, he ascertained whether IP was satisfying the conditions of the permit and determined it was. The Department reviewed IP's annual report and other corporate brochures as part of its processing of the transfer Application. Information in these documents revealed IP has obtained other Federal-type NPDES permits for other companies at several other facilities. The Department was familiar with IP's local management at the Cantonment facility when it processed the transfer Application. IP brings considerable "capability and talent" to the mill. The Department performed inspections during the last six (6) months and was familiar with the facility and wastewater system. IP is an international company with greater financial resources than Champion. It has approximately $30 billion in annual sales. Champion, in comparison, generated about $5 billion a year. It is clear that that the operation of the mill and the facility would have less capital and financial support without IP. Since June 2000, IP has worked with the Department in a continuation of the Department's concept of relocating the facility's discharge to wetlands. The plan considers removal of the facility's treated effluent from the creek to wetlands on IP's land and effectively eliminates it as a point source discharge and removes the discharge from the creek. IP will have a greater ability than Champion to meet permit conditions due to greater financial sources, technical staff, and resources. IP's management is committed to resolving water quality issues like specific conductance and is willing to resolve outstanding water quality issues in the bay and creek. In the view of the former Northwest District Director who worked on water quality issues at the facility for twelve years ending March 31, 2001, the current plan to discharge to wetlands will be implemented and allow compliance with all water quality standards. He also opines that IP has the ability to comply with water quality standards under the plan to discharge to wetlands. In the Department's view, IP has provided reasonable assurances that it has the ability to meet the existing conditions of the permit sought to be transferred. IP Complies with Permit Conditions as Evidence of Ability According to the Department's expert, Mr. William A. Evans, a professional engineer with a Master's degree in civil engineering and an expert in environmental engineering, there have been no verifiable violations of permit conditions and no exceedances since January 2000, before IP took over operations of the mill. On the other hand, Mr. Evans, in reviewing a discharge monitoring report for IP for April 2001, advised, during cross-examination, that there appeared to be "an apparent violation, exceedance of the permit" for specific conductance pursuant to the 1500 micromhons per centimeter limit in the EPA's version of the permit. However, the Variance, which is part of the Application, was granted "because there is no practicable means known or available for the adequate control of the pollution involved," i.e., specific conductance. The Department applies the limit of 2500 micromhos per centimeter set forth in the Variance for specific conductance, which is a reasonable interpretation of the permit documents. When the permit documents, including the Variance are read in this light, IP is in compliance with this limit. IP is in compliance with the Consent Order, NPDES permit, and Variance. In making this finding, the undersigned is mindful of Lane's arguments and facts presented. The issue here is not black or white; violation or no violation. As noted by Mr. Evans: This permit is recognized since '89 is [sic] not meeting water quality standards. It has all these documents because it doesn't. And they're still working under those. And the Department agrees with Ms. Lane that they are not meeting water quality standards in the creek. And we're working under these documents to make improvements. And so is Champion and so is IP. But they are not, in our opinion, violating the conditions of the permit. There [sic] are complying with studying it, meeting the interim limits that are set forth in the permit. And that is what the Statutes require when a facility can not meet all the standards of a permit. The Department, while considering the renewal application, has not approved it yet because they have not received reasonable assurances that new permit conditions can be met. Champion, and now IP, are facing the continuing challenge of satisfying, among other requirements, water quality standards, which takes time, money, and know-how. The Department rightly believes that IP can best meet this challenge. The Department's review of the monthly monitoring reports submitted by the mill since Champion was purchased reveals the facility has complied with permit conditions. The most recent monthly report was submitted May 23, 2001, and includes data through April 2001. During inspections at the facility since June 2000, the Department found no violations of permit conditions. The mill, under IP's operation, has not exceeded the fecal coliform conditions of its permit. The mill has no significant contribution to fecal coliform in the creek because it treats its own domestic sewage and meets the fecal coliform limit at the compliance point. Runoff along the creek from agricultural and domestic sources could contribute to fecal and total coliform in the creek. The Department enforces the "more stringent" pH condition in the 1989 TOP and Variance which is controlling over the less stringent standard in the 1983 NPDES permit. The pH limit in the NPDES permit is 6.0-9.0. The Department reasonably interprets the freshwater stream pH rule to mean enforcement is not required if the permittee meets the range in the rule (6.0-8.5), more stringent than the 9.0 limit in the NPDES permit. The facility's pH data satisfies this range. If the Department were to enforce a limit of 6.5, instead of 8.5, IP has the ability to meet the lower limit by installing one of several available technologies to control the pH levels. IP's current proposal includes one of these technologies. The biological integrity provision in the Consent Order requires studies on biological components of the creek and pH impacts this condition. Permit Conditions Affecting the Creek and Bay The permit does not require the facility to meet all the minimum surface water quality standards of Chapter 62-302, Florida Administrative Code, in the creek and bay. That is because of the relief mechanisms in the Consent Order, TOP, NPDES permit, and Variance. The Consent Order provides a time frame for the facility to come into compliance with water quality standards in the creek and bay. In terms of the Consent Order, the Department considers IP to be at the paragraph 14.A. step of the compliance schedule since the Department has not yet "resolved or agreed on the final corrective action required under this [C]onsent [O]rder." The Department considers the facility to be in compliance with permit conditions because it is "working under a complying [sic] schedule and an order or a temporary operating permit." See Finding of Fact 49. As long as IP is meeting the "interim limits that are set forth in the permit," it is not violating conditions of the permit. The Department is aware of water quality exceedances from the standards in the creek and bay caused by the mill. This data was reported in the "fifth year surveys." This information serves as a basis for making improvements and finding "a new solution for the effluent as required by the consent order." See Finding of Fact 49. Proposal for Joint Project with ECUA IP and the ECUA are working with the Department on a plan than would result in the discharge of IP's treated effluent to wetlands, thereby removing the effluent from the creek. IP's financial capability, size, and technical human resources make this plan feasible. IP will propose a plan to satisfy the Consent Order which consists of three parts: upgrading IP's industrial wastewater treatment facility; allowing ECUA to locate an advanced domestic wastewater treatment plant on its land; and disposing the treated effluent from both facilities to wetlands on IP's land through a pipeline. The proposed plan to discharge the facility's treated effluent to wetlands is a suitable solution that will allow the mill to meet minimum water quality standards. Lane has no objection to the plan to discharge to wetlands. It will resolve all her water quality issues. She believes the plan, similar to a prior plan, is "feasible." Standing and Improper Purpose Lane admits the Department is not making any changes to existing permit conditions before transferring it to IP. Lane agrees that changing the name on the permit from Champion to IP has no adverse affect on her. Lane brought this proceeding because she is dissatisfied with the manner in which the Department is enforcing conditions in the facility's permit. According to Lane, "They haven't done their duty." Her main complaints are with the Department's failure to enforce the permit conditions and the lack of a permit that makes the permit holder comply with Florida law. Lane feels that Champion violated permit conditions in the past, and IP is currently violating permit conditions and, as a result, the permit should not be transferred because a decision to transfer is an implicit finding of compliance. In this light, Lane argues that past performance can be an indication of future ability or lack thereof. Lane acknowledges that in order to add conditions to the existing permit, the Department must provide notice to the mill and give it a chance to meet the proposed conditions. She further admits the Department has not provided such notice. Lane proved that the environmental situation attending Champion's, and now IP's, operation of the mill and the wastewater facility has been and is less than optimum and in need of positive changes. The Department agrees and so does IP. Lane's personal observations of the condition of the creek and bay are documented. However, Lane did not prove that she will suffer an "injury in fact" if the permit and related documents are transferred to IP. Lane is not otherwise substantially affected by the Department's decision to approve the transfer. Lane's evidence did not rebut IP and the Department's proof that IP has the ability to comply with the permit conditions. The preponderance of the evidence shows that the environment in and around the mill and the facility has a better opportunity for improvement if IP takes control of the mill and facility. On the other hand, based on this record, Lane did not bring this case for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: Lane lacks standing to challenge the transfer of industrial wastewater permit number FL0002526-002-IWF/MT to IP because Lane did not prove that her substantial interests were being determined by the Department's transfer of the permit from Champion to IP; IP provided reasonable assurances it has the ability to comply with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT; IP has complied with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT, as the Department construes those conditions, since assuming control of the mill on January 1, 2001; and Lane did not participate in this administrative proceeding for an improper purpose. DONE AND ENTERED this 24th day of August, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2001. COPIES FURNISHED: Jacqueline M. Lane 10738 Lillian Highway Pensacola, Florida 32506 Terry Cole, Esquire Patricia A. Renovitch, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 301 S. Bronough Street, Fifth Floor Tallahassee, Florida 32302-1110 Craig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is entitled to the renewal of its domestic wastewater facility permit that was denied by Petitioner Department of Environmental Protection (Department).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes (2005),1 and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."2 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting water quality in the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the area of the St. Lucie River that Warner Creeks flows into is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2 at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. Laniger's WWTP was not determined to be a threat based on its wastewater treatment performance. There was no evidence presented that Laniger's WWTP had ever had intermittent treatment process failure, seepage to the lagoon system from effluent containment areas, or overflow during storm events. Those were the concerns related to package plants that were described in the SWIM Plan and the Department's 1991 report. Laniger's WWTP was not determined to be a threat based on evidence that it was causing or contributing to excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. No evidence was presented that there are excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. The Department's 1991 report concluded that the solution for package plants threats was to eliminate the package plants and connect their wastewater flow to centralized sewage collection and treatment facilities. To date, over 90 of the 155 package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." The administrative order required Laniger to connect its WWTP to a centralized wastewater collection and treatment [facility] "within 150 days of its availability . . . or provide reasonable assurance in accordance with Chapter 620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System." As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, Laniger's attorney responded, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. Laniger's attorney also stated, "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] order." On September 29, 2003, the Department issued a warning letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The Department took no further formal action until it issued the NOV in August 2005. Laniger's challenge of the NOV was consolidated with this permit case. The Permit Renewal Application In an "enforcement meeting" between Laniger and the Department prior to the expiration of 1999 permit, the Department told Laniger that it would not renew Laniger's WWTP permit. Later, when Laniger filed its permit renewal application, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger submitted its permit renewal application to the Department on February 15, 2005. The Department considered Laniger's permit application to be complete, but proceeded to prepare the Notice of Denial without any technical review of the application. The Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." The record evidence showed that the "reasonable assurance" that would have been necessary to satisfy the Department was more than the reasonable assurance the Department usually requires for package plants, and more than the Department would have required if Laniger's WWTP was 100 feet from Warner Creek. Competent substantial evidence was presented that Laniger's WWTP is capable of being operated in accordance with the statutes and rules of Department generally applicable to package wastewater treatment plants. Laniger's 1999 permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Whether the Martin County Facility is Available As discussed below in the Conclusions of Law, it is concluded that the Department did not have authority to require Laniger to connect the WWTP to the Martin County force main or to require assurance beyond the reasonable assurance generally required for package treatment plants in order to obtain a permit. However, because considerable evidence and argument was directed to whether the force main was available, that issue will be addressed here. The Martin County force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad and railroad right-of-way. Laniger presented undisputed evidence that the cost to connect to the Martin County force main would be approximately $490,000 and that cost was prohibitively high, given the relatively small number of households served by the WWTP. The Laniger WWTP is subject to rate regulation by the Public Service Commission (PSC). Laniger presented evidence suggesting that connection to the Martin County force main would result in rates that would not be approved by the PSC. The evidence was speculative and not competent to support a finding regarding PSC action. The evidence does show, however, that PSC rate regulation was not a factor that the Department considered when it determined that the Martin County force main was available. There is no Department rule that defines when a centralized sewage collection and treatment facility is "available." The determination that the Martin County force main was available to Laniger was made informally by members of the Department's compliance staff in the Department's St. Lucie office. Mr. Thiel testified that he considered the force main to be available because it was "in close proximity" to Laniger's WWTP. However, Mr. Thiel admitted that there is a difference of opinion within DEP as to when a facility is available and reasonable persons could disagree about whether a facility was available. Mr. Thiel thought that the cost to connect is a factor to be considered in determining whether a facility is available, but another Department employee did not think cost should be considered. There was no evidence that the Department took into account Laniger's cost to connect in determining that the Martin County force main was available. The Department simply assumed that the Martin County force main was close enough to the Laniger WWTP site that the cost to Laniger would not be prohibitive. In addition, the Department was aware of other package plants that had connected to centralized sewage collection and treatment facilities that were the same distance or a greater from the package plant, and the Department did not hear from the owners of the package plants that the costs were prohibitive. Timothy Powell of the Department stated that force mains are usually made available by extending the force main so that it is "abutting the property as much as possible." He also stated that he assumed that Martin County would extend its force main under the railroad and to the boundary of the Laniger WWTP site after Laniger agreed to connect. However, there was no evidence to show that this is Martin County's intent, and the Department did not tell Laniger that Laniger did not have to connect to the force main unless Martin County brought the line to the boundary of the WWTP site. If the Department had authority to require Laniger to connect to the Martin County force main when it became available, and in the absence of any rule criteria to determine when a centralized sewage collection and treatment facility is available, the determination would have to be based on reasonableness. Reasonableness in this context must take into account the cost of the connection. Cost is the inherent reason that Laniger was not required to connect to the Martin County centralized sewage collection and treatment facility without regard to whether the facility was available. Laniger showed that the cost of connecting to the force main is unreasonably high due to the need to construct a line beneath the railroad. Therefore, Laniger proved by a preponderance of the evidence that the Martin County force main is not available.
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 granting Laniger Enterprises of America, Inc., a renewal of its wastewater treatment plant operating permit. The permit should contain the same conditions as were contained in the 1999 permit, with the exception of those conditions derived from Administrative Order No. AO 99-008- DW43SED. DONE AND ENTERED this 19th day of September, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 19th day of September, 2006.
The Issue Whether the alleged violation exists and, if so, whether orders for corrective action should be made final against respondents or either of them?
Findings Of Fact On October 17, 1984, Sunshine acquired from R & F what had been a filling station at the corner of U.S. Highway 98 and Laurie Avenue in Bay County, Florida. The old gas pumps had been moved some time before October 17, 1984. Only loose pipe connections leading to the underground storage tanks remained. The deed K & F executed in favor of Sunshine made no mention of these tanks. Respondent's Exhibit No. 1. Sunshine later contracted with Jake Walters, who began construction the following April to convert the site into a convenience store with gas pumps. On January 25, 1985, long before bringing any petroleum product onto the property, Jake Walters' construction foreman, John Kenneth Barnes, began taking up the two-foot slab of concrete that overlay K & F's underground storage tanks. The ground underneath the concrete smelled of gasoline. James Guris, who was overseeing the job for Sunshine, ordered work stopped and told Harold Millis, Sunshine's vice-president for real estate and construction, about the feel and smell of the soil. When Mr. Millis learned of the situation, he decided that DER should be notified. Because by then it was too late in the day to reach DER, Jim Guris called DER's office in Panama City on the following Monday, January 28, 1985. He spoke to DER's Grady Swann, who told him to file a discharge notification form with DER. Mr. Swann said removal of the underground tanks could go forward. Before removing the storage tanks, Mr. Barnes, or somebody at his direction, measured the depth of the tanks with a stick to determine how deep to dig. In this way two or three inches of gasoline were discovered in the bottom of each tank. Even though workmen secured a pump and pumped gasoline from each underground tank (into a 500-gallon tank mounted on a truck), they were unable to pump the tanks completely dry. In each of the three underground tanks, about a half inch of gasoline remained. With a crane and lifting rigs, they raised the tanks in an upright position, without spilling any gasoline. Except inside where the half inch of gasoline stood, the tanks and appurtenant pipes and tubing were dry. Mr. Guris ordered pressure tests done on the tanks, each a cylinder some five feet in diameter. Two of the tanks passed this test, but the third failed. That tank had a hole approximately one quarter inch in diameter a little left of center, about half way up one end of the tank. Groundwater on the site came within four and a half or five feet of the surface in early February of 1985. Because it contains less than 10,000 parts per million total dissolved solids, it is properly classified as G-II. A marine clay separates the surficial aquifer from the Floridan, but the surficial aquifer recharges the Floridan. Northeast of where the storage tanks were dug up and 300 to 350 feet way a two-inch well 390 feet deep supplies water from the Floridan aquifer to three households. Nobody has detected any odor or taste of gasoline in water from those wells. Grady Swann took soil samples on site on February 8 and again on February 26, 1985. On his first visit, he noticed no sheen on the surface of the water standing in the area excavated around the old tanks, smelled no odor emanating from the standing water and did not take a sample. On his second visit, he did notice evidence of groundwater contamination and took water as well as soil samples. Mr. Swann returned on March 11, 1986, with Kenneth L. Busen and Mike Wilson of DER's Operation Response Team and used a power augur to put in temporary wells from which additional water samples were taken. These tests confirmed suspicions that the old gas tanks had leaked and revealed groundwater contamination attributable to gasoline including, in some samples, more than 1,000 times the allowable concentration of benzene. Gasoline seeping through soil leaves residual hydrocarbons which contaminate percolating rain or other groundwater moving through the same soil. Petitioner's Exhibit No. 6 depicts the probable initial configuration of the plume of hydrocarbons in the vicinity of the old tanks. Contamination is moving down gradient to the northeast, spreading out but growing more dilute. The steps called for by the proposed corrective orders are a reasonable way to mitigate environmental damage.
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
The Issue The issue is whether the Petition for Administrative Hearing should be dismissed for failure to state a cause cognizable under Florida Law.
Findings Of Fact On November 30, 1998, Suwannee American filed its application and fee for an air construction permit for a dry process, preheater/precalciner type portland cement plant. The cement plant will emit oxides of nitrogen as a result of the combustion of fuels. A small fraction of the nitrogen oxides will, through oxidation, convert to nitrate. Some of the nitrate will become available for deposition as fall- out through two mechanisms: (a) dry deposition from particulate deposition; and (b) wet deposition from rainfall. Nitrate that lands on land and water surfaces can remain there, be taken up by vegetation, or enter ground and surface waters. The cement plant will also emit mercury. Joseph Kahn, a permit engineer in the Department's Division of Air Resources, Bureau of Air Regulation, was assigned to review the application. Early in the review process, Mr. Kahn became aware that members of the public and the Department's staff in its park's division had concerns about the atmospheric deposition of mercury and nitrate emissions from the cement plant. By letter dated December 29, 1998, Mr. Kahn requested the applicant to furnish additional information, including but not limited to, an additional impacts analysis of mercury and nitrogen deposition pursuant to Rule 62-212.400(5)(e), Florida Administrative Code. 1/ Specifically, the December 29, 1998, letter made the following inquiries: 8. Please compare other NOx [nitrogen oxide] limits established by BACT (for LaFarge and Great Star Cement, for example) with the proposed NOx limit and discuss the variables that affect emissions of NOx from Portland cement plants that are applicable to the proposed facility. * ** Please discuss the basis for the estimated emissions of mercury and provide illustrative calculations. Please estimate the possible impact or deposition of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility. Please perform an additional impact analysis in the PSD [prevention of significant deterioration] Class II area near the facility including the Ichetucknee springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility. This analysis must include impact on growth, soils and vegetation, and visibility. On February 25, 1999, the Department received Suwannee American's response to the December 29, 1999, letter. The response states as follows in regards to the deposition of mercury: Response: The PSD report used an emission factor for mercury from AP-42, Table 11.6-9, for cement Kilns with fabric filters. The other available emission factor in AP-42 is for cement kilns with ESPs. As this kiln will utilize an ESP for the pyroprocessing system, this response uses the ESP emission factor: 0.00022 pounds/ton of clinker X 839,5000 tons/year = 185 tons per year. Mercury emission data from nine cement plants ere evaluated as reported in the EPA Document Locating and Estimating Air Emission From sources of Mercury and Mercury compounds. These data are shown in the following table: [Table Omitted] The use of the average value from these tests results in a lower and consistent value: 0.000171 pounds/ton of clinker X 839,500 tons/year = 144 pounds per year. Emission estimates based on expected mercury levels in limestone, clay, sand, fly ash, and coal that will be used by Suwannee American result in an estimated emission rate of 129 pounds per year. The ambient air impact of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee rivers in the vicinity of the proposed facility is estimated as 0.00003- 0.00005 ug/m 3/ as a maximum annual concentration. The Reference Air concentration (RAC) for mercury (40 CFR 266, Appendix IV) is 0.3/m 3/ annual average. The deposition of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility is estimated as 0.00002- 0.00005 g/m 2/ as a maximum annual deposition. If this level of deposition continued for 50 years and if all deposited mercury was to accumulate in the top six inches of soil, the increase in mercury levels in the soil would be on the order of 0.006 mg/kg. Safe mercury levels in soil established by Rule 62-785, F.A.C., are 3.7 mg/kg for direct exposure and 2.1 mg/kg for groundwater protection. After receiving the applicant's response to the December 29, 1998, request for additional information, Mr. Kahn performed independent evaluations to determine whether nitrate or mercury deposition would be of special concern in the area around the proposed plant. As to nitrate deposition, Mr. Kahn determined that approximately 50 tons per year of the NOx would be converted and deposited as nitrate within a 23-mile radius of the plant. He concluded that the estimated nitrate deposition from the cement plant was not significant because it was less than 0.1 percent of the annual total loading rate of nitrate (50,000 tons per year) from all other sources in the counties surrounding the Suwannee River. Mr. Kahn's independent analysis of mercury deposition yielded similar results. He concluded that, compared to the background levels of mercury existing in the soils around the proposed facility, and compared to the criteria of the Department's direct exposure soil criteria, 2/ the estimated additional mercury deposition from the cement plant would not be significant. Mr. Kahn and the applicant made several conservative assumptions in making an analysis of mercury deposition. For example, they assumed that mercury would be emitted and deposited in the cement plant's vicinity at a constant rate for 50 years. They also assumed that all of the mercury deposited on the ground would remain in the top six inches of the soil and would not migrate into any other media. On March 25, 1999, the Department conducted a public meeting on Suwannee American's application. The public commented on various issues. As to atmospheric deposition of substances, the public's comments were not structured enough for the Department to consider them per se in the application review. By letter dated March 26, 1999, the Department summarized the public concerns and requested Suwannee American to furnish the following information in relevant part: 2. Estimate potential mercury emissions from the pyroprocessing system, and characterize the fraction of mercury that will come from other raw material, coal, petroleum coke and tires. Please evaluate control methods for mercury emissions. * * * 8. What portion of the proposed plant's Nox emissions will be deposited as nitrate through dry and wet deposition within an area 25 miles radius from the site? Investigate pollution prevention techniques that may result in lower overall NOx emissions. On or about April 21, 1999, Suwannee American responded to the above-referenced questions. As to question no. 2, the responses states as follows: Response: Potential mercury emissions were submitted to the Department on February 25, 1999. Using three different approaches, the projected emissions were in all cases below the 200 pound per year threshold established by Rule 62-212.400(2)(f) and Table 212.400-2, F.A.C. as a significant emission rate increase (for PSD permitting purposes). Because the expected emissions are below the threshold amount, there is no regulatory requirement to apply BACT review for the de minimis emissions that are expected. Approximately 40 percent of the mercury will be contributed by fuel (coal) and 60 percent by raw materials. When petroleum coke or tires are used as fuel, the mercury contributed by fuel is expected to decrease. As to question no. 8, Suwannee American's response stated as follows: Response: The applicant notes that the matters inquired of in this request are not related to those matters allowed under Section 403.0876(1), F.S., and therefore requests that the Department begin processing the permit application under Section 403.0876(2)(a), F.S. However, in a continuing effort to be responsive to the concerns behind the questions asked, the applicant submits the following information, provided the submittal does not affect the permit processing time clock. Approximately 7% or less of the plant's NOx emissions will be deposited as nitrate through dry and wet deposition within an area 25 miles radius from the site. This is approximately 0.1 pounds per acre per year, and is less than one percent of the wet and dry background deposition measured at the Bradford Forest, near Starke, Florida. This analysis was very conservative, as it assumed nitrate deposition between five miles and 25 miles to be equal to the deposition rate at five miles (i.e., there was no credit taken for the decrease in deposition rate with distance beyond five miles). This approach is also conservative in that it assumed all NOx from the plant would immediately convert to nitrate and be available for deposition. This is a worst case assumption. Pollution prevention operating procedures that may result in lower overall NOx emissions are being evaluated. One technique planned for the facility is the stockpiling of limestone to allow natural drainage before pyroprocessing. Lower material moisture contents allow for the use of less fuel and hence, less NOx. After receiving Suwannee American's response to the Department's March 26, 1999, letter, Mr. Kahn reviewed the applicant's analysis. He compared information presented by the applicant with his own estimates of nitrate and mercury deposition. Suwannee American's data confirmed Mr. Kahn's prior conclusion that atmospheric depositions of mercury and nitrate from the cement plant would not be a significant fraction of the existing total deposition and total loading of those elements from all sources. Mr. Kahn did not perform any further analysis to estimate the impact of nitrate or mercury emissions on the area surrounding the proposed plant. He never made any comparisons to the Department's surface water quality criteria or standards related to Outstanding Florida Water (OFW) bodies. In other words, Mr. Kahn did not attempt to discern the specific impact of mercury and nitrate deposition on the ground water and surface water surrounding the proposed plant. His additional impact analysis was limited to comparing the estimated mercury and nitrate depositions from the proposed facility to the existing total loading of those elements from all sources in the area around the cement plant. Concluding that the impacts would be insignificant, he then informally advised certain members of the public, including Mr. Greenhalgh and some of Sierra Club/SOS' members, that the water pollution and OFW rules did not apply. The Department's Division of Air Resources never applies the standards relating to water quality or an OFW. Those standards are applied and enforced by the Department's staff in its water resource division when a water pollution permit is required. If there are off-site impacts that are not covered by the PSD rules, the applicant will be required to apply for other applicable permits. 3/ The parties do not assert that, in order to construct the cement plant, Suwannee American requires a separate water pollution permit to determine its compliance with the OFW rules. No one from the Department's water resource division officially reviewed the application at issue here. In performing his independent evaluation of additional impacts, Mr. Kahn sought information regarding the total nutrient loading in the Middle Suwannee River Basin from all sources from the Department's water resource staff, including Mr. Greenhalgh. Mr. Greenhalgh is a professional geologist who works for the Department in its water resource division. Specifically, Mr. Greenhalgh is one of the individuals working on the Department's Total Maximum Daily Load (TMDL) analysis for the Middle Suwannee River Basin. In response to Mr. Kahn's inquires, Mr. Greenhalgh stated that the basin had already exceeded its assimilative capacity and could not tolerate additional inputs of nitrate. Other members of the Department's water resource division gave Mr. Kahn similar opinions. However, Mr. Greenhalgh admits that he has not done any calculations to determine the impact of atmospheric deposition of nitrates from the proposed plant on the surrounding area. Mr. Greenhalgh directed Mr. Kahn's attention to a paper written by David Hornsby, an employee of a water management district, concerning the total nitrate loading from all sources in the Middle Suwannee River Basin. Mr. Kahn used data from the paper to make his comparisons between the total nitrate loading from all sources in the area to his estimate of nitrate deposition from the proposed plant. Mr. Kahn then informed Mr. Greenhalgh that the Department could not deny the permit on the basis of nitrate atmospheric deposition because the Department did not regulate all sources of nitrate in the basin. Except for the applicant, and the informal consultations with members of the Department's Division of Water Resources, no one furnished Mr. Kahn with any technical information regarding the atmospheric deposition of mercury and nitrates. The Federal Environmental Protection Agency has not developed or approved methods for calculating air deposition rates for emissions. In the absence of such standards, the methods used by Suwannee American and Mr. Kahn to determine the proposed facility's additional impact on the surrounding area were appropriate and reliable. The Department has adopted the federal government's acid rain rule (Rule 62-214.420, Florida Administrative Code.) That rule specifically addresses water quality impacts from the emissions and atmospheric deposition of sulfur dioxide and NOx from certain electric power plant facilities. The parties agree that the acid rain rule does not apply in this case. Permits for electrical power plants are issued under the authority of the Florida Electrical Power Plant Siting Act. The Governor and Cabinet sitting as the electrical power plant siting board approve power plant siting applications. The Department's Division of Air Resources performs a PSD review for electric power plant siting applications. Unlike the circumstances in this case, an electrical power plant siting application also requires other sections of the Department to consider impacts on water quality, solid waste, and land use. Under the terms of the Florida Electrical Power Plant Siting Act, the Department has required one other applicant to perform the type of additional impact analysis that was performed in this case. That application involved an existing Florida Power and Light Company, Inc. (FP&L) electrical power plant located near Tampa Bay, an OFW. The FP&L electrical power plant requested permission to convert to orimulsion fuel. In the FP&L power plant case, the Department took the position that water quality concerns were satisfied by a demonstration of compliance with air quality standards. There is no specific permit application that one would fill out or apply for to determine if one would be in compliance with the OFW rule. The OFW rule is usually considered in the context of another permit. However, there is no evidence that the Department has ever considered the OFW rule in the context of a new source PSD permit application. Suwannee American's proposed cement plant will be located within three miles of an OFW. There is no evidence that the Department has ever considered another application for a new source PSD (prevention of significant deterioration) permit within such close proximity to an OFW. Sierra Club/SOS' only factual allegation is that Suwannee American has not provided reasonable assurances that it would not significantly degrade the Santa Fe River, an OFW, through the atmospheric deposition of mercury, in contravention to Rule 62-302.700, Florida Administrative Code. 4/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order dismissing the Petition for Administrative Hearing in DOAH Case No. 99-3096, with prejudice for lack of standing. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 21st day of October, 1999.
The Issue The issue is whether to approve an Environmental Resource Permit (ERP) modification for the construction of a surface water management system, to be issued to Respondent, Miromar Lakes, LLC (Miromar), which will serve a 29.08-acre single- family residential development known as The Peninsula Phase IV (Phase IV) located in Lee County, Florida.
Findings Of Fact The Parties Miromar is a Florida limited liability corporation that owns property in the Miromar Lakes community in Lee County on which a development known as Phase IV will be constructed. Miromar is the applicant for the Phase IV permit. The District is a government entity with the power and duty to exercise regulatory jurisdiction over the proposed project pursuant to part IV, chapter 373, Florida Statutes, and title 40E, Florida Administrative Code. In implementing this power and duty, the District has adopted the Applicant's Handbook (AH) to provide standards and guidance to applicants. Alico is a Florida limited liability corporation with its principal place of business in Fort Myers, Florida. It is the owner of property immediately adjacent to and north of Miromar's property. Respondents have stipulated to the facts necessary to establish Alico's standing. The Conceptual Permit This case concerns Miromar's application to modify a conceptual permit issued by the District more than 15 years ago. On June 10, 1999, the District issued ERP Permit No. 36-03568-P, a conceptual approval permit for the development of a large, mixed-use residential development with a golf course, known as Miromar Lakes, that lies east of Interstate 75 (I-75), south of Alico Road, and north of Florida Gulf Coast University. The permit also approved a surface water management system designed to serve a 1481.1-acre mixed-use development within Miromar Lakes. Alico asserts that the permit is so vague in future development details that it is impossible to determine whether Phase IV is consistent with its terms and conditions. However, the 1999 permit was not contested, and any attempt in this proceeding to challenge that permit, or subsequent modifications to the permit that are now final, is untimely. A conceptual permit is available to applicants who wish to have their design concept approved for a master plan or future plan. So long as the future phases are consistent with the conceptual permit and there are no changes to applicable state water quality standards or special basin criteria, the applicant does not need to reapply under the current rules for subsequent phases. Instead, it allows an applicant to take advantage of the rules in effect at the time of the original permit issuance. A conceptual permit typically leaves construction details to future development decisions. As District witness Waterhouse explained, this is "the nature of a conceptual permit." Because the landowner does not know the precise manner in which the property will be developed years down the road, "it doesn't make sense to force the landowner to pretend that they do because it's a pretty good bet that those things are going to change to some extent in the future." By way of example, Waterhouse noted that "[a]s long as it's single family proposed then and it's proposed now, I would characterize that as sufficient detail." It is not surprising, then, that the 1999 permit contains very little detail regarding the existence, location, or development of roads, lots, a stormwater management system, or grading, and that the construction permit for Phase IV has far more detail than the conceptual permit. Even Alico's expert agreed that there is no requirement that a conceptual permit include the details of each subsequent construction phase. A fair inference to draw is that the District intended for the developer to have considerable latitude in developing the large tract of undeveloped land, phase by phase, over the life of the conceptual permit. The 1999 permit has been modified over 60 times since its issuance, and to date, significant portions of Miromar Lakes have been constructed. Except for the current, on-going feud between Miromar and Alico over several recent or pending applications (see Case Nos. 15-1050, 15-3937, and 15-5621), none of these modifications were contested. The Property at Issue Phase IV is a 29.08-acre subdivision within an area of the Miromar Lakes community known as the Peninsula. Located within Basin 6, Phase IV is the last phase of development approved by the conceptual permit for residential development in the Peninsula. All prior Peninsula phases have been permitted and developed, or are in the process of development. Prior phases were permitted based on their consistency with the conceptual permit, and none were challenged by third parties. The area under Miromar's requested permit in the instant case was conceptually authorized for single-family residential development. This is confirmed by language in the 1999 permit, which describes the conceptual proposal for Basin 6 as "includ[ing] 639.7 acres of residential, golf course, and mixed-used [sic] development." Jt. Ex. 3, p. 275. The permit also provides that each of the four sub-basins in Basin 6 should "have a water quality structure that provides treatment for the first one inch of stormwater runoff from the sub-basin . . . and that attenuation for Basin 6 is achieved onsite via the proposed sub-basin lakes and also by an existing 244.2-acre borrow lake." Id. While the 1999 permit establishes standards for flood control elevations, minimum lot elevations, and discharge rates, more specific development guidance is not provided. When the conceptual permit was issued, Basin 6 contained one former mining pit dredged from uplands to be used as a man-made lake for recreational purposes. A second mining pit, later converted to a lake, continued mining operations until 2006. The following year, the District authorized the two borrow lakes to be connected by a series of channels and canals, forming a privately-owned, 660-acre waterbody now known as Lake 5/6. Alico's property includes Lake 5, which makes up the northern portion of Lake 5/6, while Lake 6 to the south, owned by the Miromar Lakes Community Development District, is surrounded by Miromar's development. Alico has an easement over portions of Lake 6 for recreational uses under a Lake Use Agreement. Because the two connected lakes are to be used only for recreation and attenuation purposes, Lake 5/6 is designated as Class III waters and cannot be used for stormwater treatment. It is not classified as an Outstanding Florida Water (OFW) or an Impaired Florida Waterbody. Lake 5/6 discharges over a control weir into an un- channeled slough system known as the Stewart Cypress Slough. The water travels several miles through the slough system, passes several intervening properties that also discharge waters into the slough, and then runs underneath I-75. It eventually reaches the Estero River, an OFW and Impaired Florida Waterbody, which flows into the Estero Bay, an OFW. There is no direct discharge of waters from Lake 5/6 to the Estero River. The evidence shows that the project will not increase the overall discharge rate from the control weir for Lake 5/6. In February 2013, the District approved another Miromar application, known as Phase III, which authorized the third phase of development within the same peninsula where the Phase IV project will be located. That development contains two wet detention structures (Lakes 1 and 3) that will also service the Phase IV project. The Phase III permit was issued using the 1999 rules and regulations and was not contested. The Application The Original Application On November 25, 2014, the District issued its notice of intent to issue Miromar a permit authorizing the construction and operation of a stormwater system serving 29.08 acres of residential development that included multi-family residences, single-family residences, 49 boat slips, and road construction. Phase IV is a very small portion of the 1,481-acre development approved in the conceptual permit. The project is located on Via Salerno Way and Via Cassina Court within Basin 6. Construction was originally proposed in Sub-Basins 1 and 3. There is an approved Master Plan for stormwater management facilities within the project area. The site was previously cleared and filled and no wetlands are located on the site. The original construction in Sub-Basin 1 consisted of a roadway, 22 single-family residential lots, and stormwater conveyance facilities. Also included were shoreline contour shaping, placement of rip-rap on portions of the Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater within that Sub-Basin flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 1) located in Phase III north of the site. The wet detention area provides the required water quality treatment volume for the project prior to discharge to Lake 5/6. The original proposed construction in Sub-Basin 3 consisted of a roadway, 11 single-family residential lots, and 16 multi-family buildings with associated internal roadway, parking areas, and stormwater treatment, storage, and conveyance facilities. Also included within the original plans were shoreline contour shaping, placement of rip-rap on portions of Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater runoff within Sub-Basin 3 flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 3) located in Phase III north of the site. The original application included a request to increase the surface area of Lake 3 by approximately 0.1 acre and to construct three dry detention areas within the multi-family development area. The wet and dry detention areas provide the required water quality treatment for the project prior to discharge to Lake 5/6. The Revised Project After the case was referred to DOAH, by letter dated June 8, 2015, Miromar's project engineer provided the District with proposed changes to the site plan, to be used at the final hearing then scheduled to begin on June 24, 2015, which include the replacement of 16 multi-family buildings and driveways on Via Cassina Court with 23 single-family residential lots; removal of the 16 multi-family boat docks located at the southern end of Via Cassina Court; reducing the number of boat docks to 45 single-family docks; relocation of the three dry detention areas shown on the proposed site plan; and clarification of the lot grading cross-section to ensure that stormwater runoff from the development will be directed to the stormwater management system and not Lake 5/6. Updated plans, drawings, and specifications, and new water quality calculations accompanied the letter and were intended to replace original Exhibits 2.0 and 2.3 of the permit. See Jt. Ex. JA-1, pp. 244- 257. The changes resulted in a continuance of the final hearing and Alico's filing of an Amended Petition. By amendment at final hearing, Miromar removed the 45 single-family docks. The June 8 letter states that the changes will not increase pollution or reduce the efficiency of the stormwater management system. Miromar acknowledges that some of these changes were to resolve concerns raised by Alico. Miromar now seeks approval of the Phase IV permit, incorporating the changes proposed by the June 8 letter and those agreed to at the final hearing. Because there was no requirement to provide a site- specific nutrient loading analysis when the 1999 permit was issued -- this analysis was not yet formally developed -- the District did not require, and Miromar did not submit, such an analysis with its application. Under the conceptual permit, Miromar was required to provide treatment for one inch of stormwater runoff in Basin 6. Relying on this condition, Miromar applied that treatment to the Phase IV permit. This results in the treatment of 7.09 acre- feet of stormwater for the basin. After the construction shown in the permit, the stormwater management system will treat 9.21 acre-feet, or more than is required under the 1999 permit. The District established that new flood routing calculations for the project were not necessary because Miromar has set elevations for the water control structures in Lakes 1 and 3 at the same level as the road elevations, and the project connects to an existing surface water treatment system. This provides reasonable assurance that the project will not cause flooding despite having no calculations from the applicant. Alico's Objections Although couched in different terms, Alico's concerns can be generally summarized as follows. First, it contends the application should be treated as a major modification of the conceptual permit and that Miromar must satisfy current rules and regulations, and not those in effect in 1999. Second, it contends both the original and revised applications are inconsistent with the conceptual permit and must be treated as a new design, subject to all current rules and regulations. Third, even though Miromar agreed at hearing to revise its permit to address certain errors/deficiencies identified by Alico's experts, Alico contends no revisions can be made at this stage of the proceeding, and that a new application must be filed with the District and the review process started anew. Is the Application a Major or Minor Modification? If the modification is minor, Miromar is required only to satisfy applicable rules for issuance of a permit when the conceptual permit was issued. Rule 62-330.315 and AH section 6.2.1 provide guidance in resolving this issue. Rule 62-330.315(2)(g) defines a minor modification as one "that do[es] not substantially alter the permit authorization, increase permitted off-site discharge, increase the environmental impact of the project, decrease required retention, decrease required detention, decrease required flood control elevations, or decrease pollution removal efficiency." The rule also provides that the "factors that will be considered in determining whether a change is minor are described in section 6.2.1 of Volume I [of the Applicant's Handbook]." Section 6.2.1(d) lists a series of 14 factors to be considered in determining whether a modification will cause more than minor changes under rule 62-330.315(2). None of the factors is dispositive alone, and the presence of any single one of the factors does not necessarily mean that a modification is major. All 14 factors are considered together in determining whether a modification is major. Using the factors set forth in rule 62-330.315(2), in conjunction with section 6.2.1, the District reviewed the application to determine whether it was a minor modification. Based on these criteria, the District determined that the application qualified as a minor modification of a conceptual permit and that it satisfied applicable rules for issuance of a permit for this subsequent phase of the project. Alico contends that the initial review by a District staffer was only cursory and was in no way a meaningful assessment. Even if this is true, subsequent reviews by District staff, including witness Waterhouse, who supervises the ERP Bureau, was a signatory on the 1999 permit, and has reviewed thousands of ERP applications, confirmed that the application, as revised on June 8 and at final hearing, meets the criteria for a minor modification. The testimony of District witnesses Waterhouse and Waters has been accepted as being the most credible on this issue. In its review of the original application, the District considered the inclusion of boat docks as the only aspect of the application that made the project a major modification. In all other respects, the District determined that the modification would not cause more than minor changes. With the removal of the boat docks, the District concluded that the application did not substantially alter the design of the activities or the conditions of the conceptual approval permit. Alico's expert, who has never performed a similar consistency analysis on any project, testified that several of the 14 factors in section 6.2.1(d) might be affected. But he opined with certitude that factor 2 is implicated by the Phase IV permit. Factor 2 comes into play when there is an "[i]ncrease in proposed impervious and semi-impervious surfaces more than 10 percent or 0.5 acres, whichever is less, unless the activities were permitted with stormwater treatment and flood attenuation capability sufficient to meet the permitting requirements for the proposed modification." By citing only one factor, the expert implicitly conceded that the other 13 factors are not present, thus weighing towards a finding of consistency. Alico's expert focused only on the first part of factor 2 by calculating the impervious area of the project, as he did not believe the conceptual permit approved a master stormwater management system capable of sufficiently meeting the treatment and attenuation requirements for the Phase IV project. However, the more persuasive evidence is that the Master Plan in the 1999 permit is capable of meeting the treatment and attenuation requirements for the project. Therefore, factor 2 is not implicated by the Phase IV permit. Even if the factor were present, it would be insufficient to outweigh the other 13 factors and render the project a major modification of the 1999 permit. The preponderance of the evidence supports a finding that the District may consider as minor the revised application. Consistency with the Conceptual Permit A consistency analysis is conducted under two related rules. First, rule 62-330.315 identifies when a subsequent permit is either a major or minor modification of a prior conceptual permit. As found in the previous section of this Recommended Order, the modification is minor. Second, rule 62- 330.056 provides a rebuttable presumption that subsequent consistent development phases are likely to meet the applicable rules and regulations if the factors listed in subsections (7)(a) through (7)(d) are met. The primary factors for consistency comparison are identified in subsection (7)(a) as "the size, location and extent of the activities proposed, the type and nature of the activities, percent imperviousness, allowable discharge and points of discharge, location and extent of wetland and other surface water impacts, mitigation plans implemented or proposed, control elevations, extent of stormwater reuse, detention and retention volumes, and the extent of flood elevations." Subsections (7)(b) and (c) provide that in order to have consistency, there can be no changes to state water quality standards, in this case the standards for Lake 5/6, or special basin criteria. There is no evidence that applicable state water quality standards or special basin criteria have changed. Finally, subsection (7)(d) requires that there can be no substantive changes to the site characteristics. Except for the conceptual permit, there is no requirement that the District compare the Phase IV permit with any other permit. The District views the location and the land use type of the project as the two most important criteria for determining consistency. As required by the rule, the District also compares the environmental impacts of the modification to the conceptual permit, control elevations, and discharge rates. The District credibly determined there is no inconsistency. While some site characteristics in Basin 6 have obviously changed over the last 16 years, the District's review found no substantive changes that would affect whether the design concepts approved in the conceptual approval permit can continue to be reasonably expected to meet the conditions for authorizing construction of future phases. The District credibly determined that the activities in Phase IV, as revised, were similar to or less intensive than those authorized in the conceptual approval permit and may actually provide a net benefit to Lake 5/6. Alico contends that a meaningful consistency analysis was not conducted by the District staffer who reviewed the original application. But subsequent reviews by witnesses Waterhouse and Waters confirmed that Phase IV, as revised, is consistent with the conceptual permit based upon the rule and AH criteria. Besides the District's review, Miromar's expert testified that Phase IV is consistent in land use as a single- family residential development. He also testified that the Phase IV permit was consistent with the 1999 permit in size and location; it maintained the same allowable rate of stormwater discharge; and it maintained required flood control elevations. He further testified that the Phase IV permit did not change the mitigation plans, permitted stormwater reuse, flood routings, or storm stages provided by the 1999 permit. This testimony has been credited in resolving the issue. The preponderance of the evidence supports a finding that the Phase IV land uses are the same as contemplated in the conceptual permit and the already-approved prior phases of Miromar Lakes, and the new permit is consistent with the conceptual permit. Therefore, Miromar is entitled to a rebuttable presumption that it meets the applicable rules and standards in place when the 1999 permit was issued. Alico failed to rebut this presumption. Revisions and Amendments at the Final Hearing During the final hearing, Alico's experts identified several errors and/or deficiencies in the design of Miromar's project, described below, that should be addressed before a permit can be issued. Miromar agrees with some of these concerns and asks that they be addressed through revisions incorporated into its permit. The District also concurs with these changes. The record shows that they are appropriate, minor in nature, and do not change the character of the permit. There is no evidence that Alico is prejudiced by allowing these revisions. Alico's expert testified that the Phase IV permit does not provide sufficient information regarding the soils on the Phase IV site. At hearing, Miromar agreed that any unsuitable soils discovered during construction would be excavated and removed and correctly disposed of in a landfill or other uplands. This is the common method of dealing with soils in Lee County, where it is not unusual to find unsuitable soils during construction. A special condition to this effect should be included in the final permit to ensure clarity. Through a series of treatment ponds, Miromar proposes to treat nearly all stormwater that falls on-site prior to its discharge to off-site properties. Alico's expert testified that the lot grading detail drawings inaccurately reflect the elevations of certain portions of the lots and can result in runoff from some lots being routed to Lake 5/6, instead of Lakes 1 and 3. Miromar agrees with this concern and represented that the intent of the June 8 letter is that drainage for all lots, except for the portion of lots within the 20-foot Lake Maintenance Easement (LME), which surrounds the project on three sides, be directed to the front of the lots toward the street, and then to the treatment ponds. Water that falls naturally within the LME will be treated by attenuation in Lake 5/6 prior to off-site discharge. Miromar also agrees to submit new Tabular Lot Grading Revisions and a new Typical Lot Grading Detail and to update its June 8 plans to reflect proposed lot grading elevations consistent with the lot detail. Alico's expert acknowledged that roof gutters are an additional solution, and they should be installed on all roofs in order to direct runoff to the front yards and then to the stormwater system. Finally, to ensure proper lot drainage, Miromar agrees that the secondary drainage pipes to convey runoff from roofs, gutters, and grassed areas will have a minimum size of six inches. The District agrees that these changes will improve water quality and ensure that all stormwater is properly captured and directed into the stormwater system. A special condition requiring these revisions should be included in the final permit to ensure clarity. Alico's expert also testified that the plans should include a requirement that Miromar follow best management practices (BMPs) for the replacement of a control structure in Lake 3, which serves as a stormwater treatment pond. General Condition 3 already addresses this issue by requiring Miromar to use BMPs that prevent adverse impacts to the water resources and adjacent lands. In addition, the June 8 letter provides plans for BMPs for work at the site, including Lake 3. Although the District found that reasonable assurances were provided by General Condition 3 and the June 8 letter, to ensure clarity, a special condition should be included in the final permit that requires the use of BMPs for all construction, including the replacement of an old boat ramp and the control structure in Lake 3. Miromar and the District agree that this revision is appropriate. Alico's expert opined that control structures CS-1 (Lake 1) and WQS-1.3 (Lake 3), which have a circular bleeder orifice with a four-inch diameter, should be limited to a bleeder orifice of 3.7 inches in diameter. Although the District found reasonable assurances existed with four-inch bleeder orifices, Special Condition 3 should be modified to reflect a 3.7-inch bleeder for these control structures. This will ensure that before being discharged, the water leaving the two control structures receives the appropriate amount of water quality treatment. Both Miromar and the District agree that this revision is appropriate. With the removal of all docks and an old boat ramp, Special Conditions 2, 10, 11, and 13 through 17 require modification, or deletion if necessary, to eliminate obsolete language relating to the docks and ramp and to add language to provide that construction and operation of the docks shown on the plans, specifications, and drawings are not authorized. Miromar and the District agree to these revisions. Other Concerns Alico's expert contended that under current District rules, Miromar is required to provide stormwater treatment equal to the greater of (a) one inch multiplied by the total project acreage, and (b) 2.5 inches multiplied by the project's impervious area. However, Alico did not pursue this issue in its PRO, probably because its expert agrees that the current design of the project meets District rule criteria for one inch of water quality treatment. Alico's expert also contends that Miromar is required to provide an additional 50 percent of stormwater treatment above the one-inch requirement. This is contrary to the conceptual permit, which does not require additional stormwater treatment. Also, the requirement does not apply when there is no direct discharge of stormwater into an OFW. Even so, Miromar voluntarily agreed to increase the stormwater treatment capacity for Phase IV, which results in excess treatment in Basin 6 greater than 50 percent above the treatment required for the Phase IV area. Alico argues that the additional treatment is illusory, as it relies on additional treatment from an adjoining phase, and not Phase IV. Even if this is true, Alico's expert admits that the current one inch treatment meets the requirements of the rule for issuance of a permit. Alico's expert contended that the Phase IV permit allows the bulkhead to be developed on more than 40 percent of total shorelines, in contravention of AH section 5.4.2, Volume II, which restricts a bulkhead to no more than 40 percent of the lake perimeter. However, Miromar's expert established that the Phase IV hardened shorelines would comprise less than 40 percent of the total shoreline in the Phase IV area and therefore comply with this requirement. His testimony was not credibly refuted. Even though there is no direct discharge from the project into the Estero River or Estero Bay, and the project will not result in higher discharge rates from the overall system outfall from Lake 5/6, based on water samples taken in August 2015, Alico's expert opined that the project will cause a discharge of excess nutrients into an OFW. The evidence shows, however, that these water samples were taken after heavy rains when the expert observed water flowing upstream from the slough into Lake 5/6, rather than downstream. The expert also admitted he had done no testing, analysis, or modeling demonstrating that any pollutant would even reach the Estero River. He failed to take a baseline sample of water quality for any nutrients for which the slough, Estero River, or Estero Bay may be impaired, and he conceded that it was possible that there was no net discharge from Lake 5/6 into the slough during the time of his testing. There is insufficient evidence to sustain this allegation. Other alleged deficiencies or errors in the application, as revised, that are not addressed in this Recommended Order have been considered and found to be without merit. ERP and Public Interest Criteria The criteria the District uses when reviewing an ERP application are contained in the AH and rules 62-330.301 and 62-330.302. In addition, an applicant must provide reasonable assurance that a proposed project is not contrary to the public interest. § 373.414, Fla. Stat.; AH § 10.2.3. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the activities authorized by the ERP comply with all applicable ERP permitting criteria. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the proposed project is not contrary to the public interest.
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 approving Miromar's application, as revised, for a permit modification, subject to the following additional conditions: That the plans, drawings, and specifications submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 244-53, be used as Exhibit 2.0 of the permit. That the water quality calculations submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 254-57, be used as Exhibit 2.3 of the permit. That Special Conditions 2, 10, 11, and 13 through 17 be revised or eliminated to remove obsolete language relating to the removal of the boat docks and boat ramp. That Special Condition 10 be revised to require that all construction, including the removal of the boat ramp and replacement of Control Structure No. 3, be conducted using BMPs. That a new special condition be added to reflect that the construction and operation of docks will not be authorized by the permit. That a new special condition be added with new Tabular Lot Grading Revisions and a revised Typical Lot Grading Detail and address the following: the project shall be constructed to ensure that stormwater from the project, except stormwater from within the LME, is routed to the stormwater treatment system prior to discharge to Lake 5/6; the lot grading on all lots shall be in accordance with the revised lot grading to reflect the high point of the lots located adjacent to the LME to ensure that runoff from the lots is directed to Lakes 1 and 3; that the revised lot grading require the installation of six-inch secondary drainage pipes; and that roof gutters be installed on all roofs to ensure that runoff from the residential lots is directed to the stormwater treatment system. That a new special condition be added to address unsuitable soils encountered during construction and to ensure that they are removed and disposed of in an appropriate manner. That Special Condition 3, relating to discharge facilities, be revised to reflect that a 3.7-inch circular orifice will be installed in Sub-Basins 1 and 3, rather than a four-inch orifice shown in the existing plans. DONE AND ENTERED this 27th day of January, 2016, 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 27th day of January, 2016. COPIES FURNISHED: Peter Antonacci, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Kevin S. Hennessy, Esquire Lewis Longman & Walker, P.A. Suite 620 101 Riverfront Boulevard Bradenton, Florida 34205-8841 (eServed) Brian J. Accardo, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Martin L. Steinberg, Esquire Hogan Lovells US, LLP Suite 2700 600 Brickell Avenue Miami, Florida 33131-3085 (eServed) Timothy J. Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed)
