The Issue The issue to be determined in this case is whether the Notice of Intent to Issue Order Requiring Access to Property (“Access Order”) issued by the Department of Environmental Protection (“Department”) and directed to Glenda Mahaney, as the property owner, is a valid exercise of the Department’s authority.
Findings Of Fact Petitioner Glenda Mahaney is a natural person and the owner of the property identified in the Access Order. The Department is the state agency which has been granted powers and assigned duties under chapters 376 and 403, Florida Statutes, for the protection and restoration of air and water quality and to adopt rules and issue orders in furtherance of these powers and duties. Background The groundwater beneath a parcel of land adjacent to Petitioner’s property was contaminated with petroleum when the land was used in the past for auto salvage operations. Initial groundwater sampling near the border of Petitioner’s property showed groundwater contamination by gasoline constituents which exceeded Groundwater Cleanup Target Levels (“GCTLs”). In other words, the contamination was at levels that required cleanup. However, later sampling showed the concentration of contaminants had decreased below GCTLs, probably as a result of natural attenuation. The existing data suggests that any groundwater contamination beneath Petitioner’s property is probably now at a level that would not require cleanup. However, the Department issued the Access Order because the Department is not certain about the contamination beneath Petitioner’s property and because Petitioner has continually requested further investigation. Petitioner believes contamination from the auto salvage site has caused illness in a tenant and even contributed to other persons’ deaths. However, no expert testimony was received on this subject and no finding is made about whether contamination exists on Petitioner’s property which has caused illness or death. The Department’s Site Investigation Section wants access to Petitioner’s property in order to determine whether contamination has migrated beneath Petitioner’s property and, if it has, the extent and concentration of the contaminants. The Department wants to: (a) install up to five temporary groundwater monitoring wells, (b) collect groundwater samples from the wells, (c) collect a groundwater sample from Petitioner’s potable water well, and (d) remove the monitoring wells after the sampling. The Access Order includes terms related to advance notice, scheduling, and related matters. Liability Although Petitioner believes petroleum contamination is present and wants it cleaned up, she objects to the provision of the Access Order related to liability. Paragraph 9(e) of the Access Order provides: Ms. Mahaney shall not be liable for any injury, damage or loss on the property suffered by the Department, its agents, or employees which is not caused by the [sic] negligence or intentional acts. Petitioner insists that she should not be liable under any circumstances for injuries or damages suffered by Department’s agents or employees who come on her property for these purposes. She demands that the Department come onto her property “at their own risk.” At the final hearing, the Department stated that it did not intend to impose on Petitioner a level of liability different than the liability that would already be applicable under Florida law. The Department offered to amend Paragraph 9(e) of the Access Order to indicate that Petitioner’s “liability, if any, shall be determined in accordance with Florida law.” Scope of the Investigation Petitioner objects to the proposed groundwater sampling because she does not believe it is extensive enough. Petitioner also believes the Department should test for soil contamination. The Department’s expert, David Phillips, testified that the proposed monitoring well locations were selected based on the direction of groundwater flow in the area and the wells are along the likely path of migration of any contaminated groundwater from the former auto salvage site. Another Department witness, Tracy Jewsbury, testified that no soil contamination was found on the auto salvage site, so the Department has no reason to expect there would be soil contamination on Petitioner’s property that came from the auto salvage operation. The Department will use the data collected from the wells to determine if contamination is present and whether future contamination assessment and/or remediation activities are necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection withdraw the Access Order or, alternatively, that Paragraph 9(e) of the Access Order be amended to provide that Ms. Mahaney’s potential liability, if any, shall be determined in accordance with Florida law. DONE AND ENTERED this 15th day of November, 2017, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2017. William W. Gwaltney, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Glenda Q. Mahaney Post Office Box 123 Mount Dora, Florida 32756 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed
The Issue The issue is whether Respondent properly denied Petitioner's application to participate in the Drycleaning Solvent Cleanup Program.
Findings Of Fact Petitioner and her husband, Lynn Labado, bought the Soap Opera Laundry and Drycleaners as an on-going business in 1984. Since that time, they have operated the business, without interruption, at the same location in a shopping center owned by a third party. Petitioner's drycleaning machine is located in a storage room with the hatch opening through the front wall of the storage room and the body of the machine enclosed in the storage room. Petitioner purchased and installed a new drycleaning machine in 1995. The new machine has a tank capacity of 46 gallons. Petitioner may have subjectively believed that the new machine met all statutory requirements. However, there is no evidence that she attempted to contact Respondent to determine whether the new machine was in compliance with existing law. In 1994, the Florida Legislature created a program to clean-up properties contaminated with drycleaning solvents, i.e. perchloroethylene. The program is funded, in part, by a tax on gross receipts of drycleaning sales and a per-gallon tax on perchloroethylene imported or produced in the state of Florida. Petitioner paid these taxes at all times material hereto. The 1994 Florida Legislature gave Respondent the duty to establish a registration program for drycleaning facilities and wholesale supply facilities. Respondent was required to use reasonable efforts to identify and notify drycleaning facilities and wholesale supply facilities of the registration requirement. All existing facilities were required to register with Respondent by June 30, 1995. Initially, Respondent secured a list of facilities identified as perchloroethylene users from its Division of Air Resources Management. Respondent's air resource management division was an excellent source from which to identify drycleaning facilities because a federal program under Title V of the Clean Air Act required all perchloroethylene users to obtain an air permit. Respondent then contacted the Department of Revenue seeking the identity of facilities that paid taxes on gross receipts of drycleaning sales and taxes on production or importation of perchloroethylene. The Department of Revenue provided Respondent with a short list of laundries which used laundry soaps and solvents. However, the Department of Revenue invoked a legal privilege preventing complete disclosure of the requested information. Next, Respondent contacted the Florida Drycleaning Coalition for assistance in ascertaining the names of drycleaning facilities in the state. The coalition membership includes individual drycleaners, wholesale suppliers of perchloroethylene and other drycleaning solvents and supplies, and owners of real property that own drycleaners or have drycleaners located on their property. The Florida Drycleaning Coalition provided Respondent with information from wholesale suppliers regarding the identification of their customers who were perchloroethylene users. Finally, Respondent contacted two of the suppliers directly for additional information concerning drycleaning facilities. Respondent eventually compiled a list containing approximately 1700 names of drycleaning facilities and wholesale suppliers. Between 50 and 100 drycleaning establishments were not included in the list because they did not have an air permit, they were not members of the Florida Drycleaning Coalition, or they purchased their perchloroethylene from an out-of-state supplier. Nevertheless, Respondent's efforts to identify all drycleaning facilities in the state were reasonable. Respondent sent registered letters to everyone on its master list in April 1994. The letter included an interim registration form. It provided information about the statutory registration requirements and gave a brief description of the Drycleaning Solvent Cleanup Program. Petitioner did not receive one of the April 1994 letters because her name was not on the master mailing list. Petitioner did not belong to the Florida Drycleaning Coalition. She always purchased drycleaning solvent from suppliers in Mobile, Alabama. The 1995 Florida Legislature amended the statutory requirements for drycleaning facilities. Section 376.3078(7)(a), Florida Statutes (1995), stated as follows in pertinent part: Owners or operators of drycleaning facilities shall by January 1, 1997, install dikes or other containment structures around each machine or item of equipment in which solvents were used and around any area in which solvents or waste-containing solvents were stored. Such dikes or containment structures shall be capable of containing 110 percent of the capacity of each such machine and each such storage area. To the extent practicable, each owner or operator of a drycleaning facility shall seal or otherwise render impervious those portions of all dikes' floor surfaces upon which any drycleaning solvents may leak, spill, or otherwise be released. In August 1995, Respondent mailed each facility on the mailing list a copy of a Fall 1995 Drycleaning Solvent Cleanup Program Update. This document advised each facility about the registration requirement (then past due). It also gave notice about a workshop for a proposed rule to implement the program. In 1995, Respondent conducted several workshops through-out the state in conjunction with the Florida Drycleaners Coalition. The workshops provided information to the public on the drycleaning solvent clean-up rule. The workshops included information regarding secondary containment requirements. Additionally, an industry periodical addressed the requirements for secondary containment. In January 1996, Respondent mailed each registered facility on the mailing list a copy of a January 1996 Drycleaning Solvent Cleanup Program Update. This document provided information related to the status of the proposed rule, payment of registration fees, and third party liability insurance. The January 1996 advisory also referenced future guidance that Respondent would provide on secondary containment requirements. In March 1996, Respondent mailed each registered facility on its mailing list a copy of a March 1996 Drycleaning Solvent Cleanup Program Update. This March 1996 notice provided information pertaining to the status of the proposed rule, payment of registration fees, and third liability insurance. It also referenced a general program information document and guidelines for compliance with secondary containment, which accompanied the March 1996 advisory. The general program information document included detailed information describing secondary containment requirements. The document advised drycleaners that the deadline for installing secondary containment was January 1, 1997. The Drycleaning Solvent Cleanup Program rule (Rule 62-781, Florida Administrative Code) became effective on March 13, 1996. In July 1996, Respondent mailed each registered facility a copy of a July 1996 Drycleaning Solvent Cleanup Program Update. Included with the advisory was a detailed memorandum entitled, "What you need to know about . . . Secondary Containment Requirements for Drycleaning Facilities." In December 1996, Respondent mailed each registered facility a copy of a December 1996 Drycleaning Solvent Cleanup Program Update. This document provided information pertinent to the drycleaning solvent clean-up rule, applications to the Drycleaning Cleanup Solution Program, and requirements for secondary containment. Except for the initial April 1994 letter, all advisories referenced and described Respondent's "fax-on-demand" system. Some of the notices included the telephone numbers of Respondent's staff. The "fax-on-demand" system consisted of a toll-free number which drycleaners could use to obtain updated program information. Drycleaners could use the system to request facsimile copies of registration forms, copies of the rule, and copies of the guidelines for secondary containment. Respondent's statutorily required efforts to notify all drycleaners about the registration requirement by certified mail were reasonable. Respondent was not required by statute or rule to provide drycleaners with individual notice of the secondary containment requirements by mail or otherwise. Respondent undertook this responsibility, as to the registered facilities on its master mailing list, and as to the public via the "fax-on- demand" system, in an effort to provide good customer relations and to help drycleaners comply with the law. Petitioner did not receive any of the above-referenced notices from Respondent because she was not on the master mailing list. There is no evidence that she was aware of the "fax-on- demand" system. By December 1996, Respondent was aware of the drycleaning industry's concerns about the secondary containment requirements. Specifically, industry members represented to Respondent that vendors of secondary containment equipment would be unable to complete work by January 1, 1997. In response to industry concerns, Respondent's Director of the Division of Waste Management issued a memorandum dated December 13, 1996, relative to the January 1, 1997, secondary containment deadline. The memorandum was directed to the division's district managers. The memorandum stated as follows, in pertinent part: The statute has been in effect since October 1995; so drycleaner owners and operators have had sufficient notice of the requirement. In addition, drycleaning owners and operators have been reminded of the deadline by notices mailed to each registered drycleaning facility. The Department does not have authority to extend this deadline. Drycleaning facility owners missing the deadline are subject to enforcement. However, due to the apparent shortage of vendors and installation contractors . . . Directors of District Management may wish to consider exercising a short term deferral of enforcement action. In determining whether to make such a deferral, the following conditions should be considered: The facility owner or operator should demonstrate that the facility began operations prior to January 1, 1996. Facilities that began operation after that date were required to have secondary when operation commenced. The facility owner should have a signed, binding contract, in accordance with Florida Statutes, which can not [sic] be cancelled or modified without substantial loss, that was executed by January 1, 1997. The installation shall be completed by April 30, 1997. (Emphasis in original). The memorandum did not expressly address the issue of whether facilities that met the stated conditions, but did not meet the statutory deadline, would be deemed eligible for participation in the Drycleaning Solvent Cleanup Program. Respondent selected the April 30, 1997, date because its staff believed that approximately 120 days would be sufficient time for facilities to comply with the secondary containment requirements. Respondent subsequently took the position that facilities meeting the conditions of the memorandum were in substantial compliance with secondary containment requirements. Respondent determined that such facilities were eligible for participation in the Drycleaning Solvent Cleanup Program despite their failure to comply with the January 1, 1997, deadline. Respondent now admits that it did not have discretion to grant eligibility to facilities after the deadline. Respondent's December 13, 1996, memorandum should only have affected its discretion involving enforcement decisions. Notwithstanding Respondent's error in implementation of the December 13, 1996, memorandum, Petitioner failed to install secondary containment by the January 1, 1997, deadline. Moreover, she did not install it by the April 30, 1997, installation deadline described in Respondent's memorandum. Respondent has never had a policy that the "state of mind" of a facility, or relative diligence of a facility, would suffice to excuse its failure to meet the secondary containment deadline. Respondent has never deemed a facility eligible to participate in the program simply because it did not receive notice that all registered facilities received. Except for cases that fell within the terms of Respondent's December 13, 1996, memorandum, Respondent has never granted an application in circumstances where a facility failed to timely install secondary containment dikes or structures around a drycleaning machine. In the summer of 1997, the company that owned the property where Petitioner's drycleaning business is located, decided to sell the shopping center. In conjunction with the sale, the shopping center's property management company hired environmental consultants to determine whether Petitioner's business site was contaminated by drycleaning solvent. A soil sample taken at the site in July 1997 indicated that further environmental assessment was warranted. In September 1997, the environmental consultants hired by the shopping center's property management company performed a subsurface investigation to determine the potential for contamination at Petitioner's business site. The investigation showed evidence of contamination by drycleaning solvent below the building's slab floor in the vicinity of the drycleaning machine. Sometime between September and November 1997, Petitioner learned that there was contamination at or around the site. At about the same time, Petitioner learned for the first time of the need to register with Respondent and to install secondary containment. The property management company advised Petitioner to place sealant on the floor and to install a "ridge" around the edge of the floor in the area of the drycleaning machine. The property management company gave Petitioner a copy of Respondent's registration form. Petitioner also received an application for the Drycleaning Solvent Cleanup Program. Petitioner and her husband prepared the application. In response to questions on the application, they indicated that Petitioner had not installed secondary containment around and beneath each machine or item of equipment which used drycleaning solvent. They also indicated that Petitioner had not installed secondary containment structures around or beneath each area used to store drycleaning solvents or waste which contained drycleaning solvents. The program application indicates that the facility was operating as a drycleaning establishment at that time. Petitioner signed the registration form and the program application in November 1997. She filed both with Respondent on December 1, 1997. Petitioner installed a "ridge" on the floor behind the drycleaning machine in the storage room sometime in the fall of 1997. Petitioner applied sealant to the "ridge" and the floor behind the machine. Petitioner did not install any type of containment structure or sealant on the floor in front of the machine in the retail area of the business. In order for an application to be complete, a site- screening report must accompany it. A registered professional geologist or engineer must certify the report. In this case, the shopping center's property management company retained Environmental Consulting Technologies, Inc. to perform the site screening in April 1998. The site-screening report was completed in May 1998. It was filed with Respondent on May 29, 1998, together with a copy of Petitioner's original application. By letter dated August 5, 1998, Respondent denied Petitioner's application. The notice stated that the application was denied for the following reason: Pursuant to Section 376.3078(7)(a), Florida Statutes (F.S.), by January 1, 1997, secondary containment must be installed around and beneath all items of equipment which utilize dry cleaning solvents. Failure to meet this requirement constitutes gross negligence. On September 15, 1998, Respondent's compliance inspector visited Petitioner's facility to determine whether it was in compliance with drycleaning program regulation. He subsequently prepared a report of his observations. Among other violations of state and federal laws, the inspector determined that Petitioner's containment structure around the back of the drycleaning machine was inadequate. He concluded that there was no secondary containment at the facility. The report provides as follows, in pertinent part: This inspection revealed that Soap Opera did not have a metal secondary containment pan around their dry-cleaning unit. However, the floor behind the dry-cleaning unit was sealed. It was later learned that the floors were sealed in November 1997 with Bondcrete sealant. In addition, Soap Opera installed a concrete berm which is approximately one inch high around the back perimeter of the dry- cleaning unit. The berm appeared to be sealed with sealant. An inspection of the front of the machine revealed carpet with no concrete berm. The floor was not sealed. The specifications for the Multimatic Princess indicates that the working tank has a volume of 46 gallons. If a spill did occur, a containment structure [metal pan or berm] is not in place to contain at least 110% of the capacity of the machine or item of equipment and waste containers stored behind the drycleaning unit. If a spill did occur, it is very likely that perc or waste perc would not be contained with the current containment system since no secondary containment is installed in front of the unit. The inspector's September 1998 visit was the first time there was any direct contact between Petitioner and Respondent. Respondent's compliance inspector visited Petitioner's premises again on December 16, 1998. During the second visit, Respondent's inspector measured the dimensions of the containment structures that were in place around the drycleaning machine. The measurements revealed that the existing berm had the capacity to contain only a 38.8-gallon spill. That amount is less than 110 percent of the volume of the largest working tank at the facility. It was unlikely that a spill could be contained because there was no secondary containment in front of the drycleaning machine. On March 22, 1999, Respondent and Petitioner executed a consent order to address Petitioner's deficiencies. Petitioner has installed appropriate secondary containment and is in compliance with the terms and conditions of the consent order.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to participate in the Drycleaning Solvent Cleanup Program. DONE AND ENTERED this 20th day of September, 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 20th day of September, 1999.
The Issue The issue posed herein is whether or not the Respondent, Arthur M. Jones, Jr.'s Wastewater Treatment Plant Operator's license should be suspended or revoked based on conduct set forth hereinafter in detail based on allegations as set forth in the Petitioner's Administrative Complaint filed January 31, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the documentary evidence received, the following relevant facts are found. Respondent, Arthur M. Jones, Jr., is a duly certified Class C Wastewater Treatment Plant Operator, certified pursuant to Chapter 17-16, Florida Administrative Code. Respondent holds license No. 793 originally issued by the Florida Department of Health and Rehabilitative Services on May 13, 1971. The responsibility for certification of wastewater treatment plant operators was transferred to the Florida Department of Pollution Control by Executive Order 72-75. The Florida Department of Environmental Regulation is the successor agency to the Florida Department of Pollution Control by virtue of Chapter 75- 22, Laws of Florida, and is authorized by Section 403.101, Florida Statutes, to issue and revoke operators' certificates pursuant to its rules and Chapter 120, Florida Statutes. At all times material to this complaint, Respondent was employed by the Duval County School Board in Jacksonville, Florida. At all times material, Respondent was employed by the School Board as a School Sewer/Water Plant Mechanic, a position requiring certification by the Department as a Wastewater Treatment Plant Operator. In his capacity as a School Sewer/Water Plant Mechanic and Class C Operator, Respondent was responsible for the operation, supervision, maintenance and collection of influent and effluent samples from various Duval County schools. Persons responsible for the operation, supervision, maintenance and collection of influent and effluent samples must be licensed and certified by the Department as a Wastewater Treatment Plant Operator. Additionally, Respondent, in his capacity as a School Sewer/Water Plant Mechanic and Certified Class C Wastewater Treatment Plant Operator, was responsible for the proper collection of composite samples of raw sewage and the treated effluent from each such plant. According to instructions given the Respondent, a composite sample was to be taken by filling one-third of a sample bottle at two-hour intervals until the bottle was full. The composite sample of raw sewage was to be taken from the influent line and the composite sample of treated final sewage was to be taken from the effluent line. After the collection process, Respondent was responsible for properly and accurately labeling the composite samples and for depositing them in a refrigeration unit at School No. 98. The composite samples are then picked up at School No. 98 by authorized personnel for laboratory analysis to determine whether sewage is being adequately treated. The complaint, in summary fashion, alleged that the Respondent on or about February 15 and March 15, 1978, completely filled a raw sample bottle from the filter bed rather than from the influent line of the plant at School No. 94. That sample was submitted as a composite sample and placed in the refrigeration unit for pickup and analysis by laboratory personnel. Additionally, the complaint alleges that on February 15, 1978, at School No. 82, Respondent filled raw and final sample bottles for Schools Nos. 82, 64, 83 and 153, none of which were a proper composite sample. The samples, it is alleged, were all taken from School No. 82. The complaint alleges that similar acts occurred on March 15, 1978; on April 4, 1978 and April 11, 1978, all of which acts "constitute gross neglect and fraud in the performance of duties as an operator of a wastewater plant." Based thereon, the Petitioner seeks revocation of the Respondent's Class C Wastewater Treatment Plant Operator's license. L. L. Masters is Respondent's foreman and is in charge of the wastewater treatment plant facilities. Masters is Respondent's immediate supervisor. On March 15, 1978, Foreman Masters assigned Respondent the duties of taking composite samples of Schools 94, 64, 83, 82 and 159. Evidence reveals that Foreman Masters arrived at School 82 at 9:00 o'clock a.m. and departed at 2:00 p.m. Evidence also reveals that Foreman Masters had a clear view of the entire wastewater treatment plant and that it was impossible for the Respondent to enter and leave the treatment plant in a manner whereby composite samples could be collected without Foreman Masters seeing him. In this regard, Respondent's work orders reflect that he reported having arrived at School 82 at 10:40 a.m. and departed at 12:10 p.m. (Petitioner's Exhibits 5, 6, 7 and 8.) On April 4, 1978, Respondent was assigned to collect composite samples from Schools 72, 233, 76 and 208. (Petitioner's Exhibit 9.) Foreman Masters observed Respondent on April 4, 1978, with employee Carl Casey. Masters went to School 77 at 8:30 and Respondent was not there, although he had given a dispatcher a routing which would have taken him to School 76. When Foreman Masters noted that Respondent had not arrived at School 76 by 8:30 a.m., he took employee Carl Casey to School 233 and left Casey at School 233 while he returned to School 76. The Respondent was not there and Masters drove to School 208 where the Respondent arrived at approximately 9:30 a.m. It suffices to say that the Respondent then left for School 233 and arrived there at 10:30. From approximately 10:45 to 11:45, the Respondent was in the wastewater treatment area of School 233 and took three samples from the effluent line and three samples from the influent line at School 233 from the period 10:30 a.m. through 11:45 a.m. (Petitioner's Exhibits 9, 10 and 11.) Employee Pat Wilson testified that he accompanied Respondent on February 15, 1978, and that all samples were taken from the filter beds of Schools 98 and 82. Detective Jack C. Adams of the Jacksonville Police Department was assigned to the surveillance of Respondent on April 11, 1978. Detective Adams credibly testified that the Respondent did not take composite samples from the assigned schools as reflected by the work orders submitted by Respondent Respondent appeared and testified that one of the events for which he had been charged occurred as alleged; however, he testified that inasmuch as he questioned the procedures, he was of the opinion that since no harm was done, and since no school experienced problems, he is not guilty of gross neglect and fraud in the performance of his duties as an operator of a wastewater treatment plant as alleged. The evidence herein reveals that the Respondent was instructed as to the proper procedures for testing, collecting and preserving composite raw and final samples from wastewater treatment plants by his employer. He testified that he had attended a seminar wherein the instructions for such procedures were outlined to him and that he was given a manual on the methods for collecting raw and final samples. Barry McAlister, a certification officer for the Department, testified that Class C operators are instructed as to the proper procedures for collecting samples. Additionally, he testified that the submitting agencies rely heavily on the operators to properly collect samples which are submitted for analysis. Chapters 17-19.04, Florida Administrative Code, additionally set forth the sampling and testing methods for collection and preservation of composite samples. Although there was some conflicting testimony respecting the adherence to the procedures uniformly by the various wastewater treatment plant operators employed by the School Board, the undersigned is of the opinion that the Respondent was not at liberty to select and choose the manner within which he would collect composite samples for analysis by his employer in view of outstanding instructions which were in effect during his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent, Arthur M. Jones, Jr.'s license as a Class C Wastewater Treatment Plant Operator be suspended for a period of two (2) years. RECOMMENDED this 28th day of September, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Silvia Morell Alderman, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Reed Tallahassee, Florida 32301 Joseph S. Farley, Jr., Esquire Mahon, Mahon & Farley 350 East Adams Street Jacksonville, Florida 32202
Findings Of Fact The Respondent, Philip G. Nicholson, does business as Allstate Termite Control. The Respondent holds a pest control identification card issued by the Office of Entomology of the Department of Health and Rehabilitative Services. On or about September 23, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Roland E. Cooley and Alma P. Cooley with respect to the Cooleys' residence in Lake Worth, Florida. The chemical specified for use on the contract was chlordane. On or about that same date, the Respondent entered into a contract with Roland E. Cooley and Alma P. Cooley to perform a dry wood termite attic prevention treatment on the Cooley's residence. The chemical specified in the dry wood contract was "dri die". Only hearsay testimony was offered to establish what, if any, representations the Respondent made to the Cooleys to induce them to enter into the contracts. The work performed by the Respondent on the Cooleys' residence was not sufficient to provide the protection specified in the contracts, and in the case of the dry wood treatment, was unnecessary. The Cooleys' residence is constructed on a concrete slab. With such structures, the chlordane label, which governs use of the chemical, requires that all voids in hollow masonry units of the foundation be treated at the rate of at least one gallon per five linear feet of wall. It is thus necessary to drill each masonry block so that the chemical can be injected into it. Hollow masonry blocks were used in constructing the foundation of the Cooley house. Only one drill hole was made on the north side of the house into the masonry blocks, and none were made on the south side. If each of the masonry units had been treated as required, drill holes would have been placed at every eighteen inches along the foundation. This was not done, and the treatment for subterranean termite control was thus not in accordance with the label on the chemical, and was substandard. The treatment was inadequate to provide the Cooleys with the protection provided in the subterranean termite control contract. As to the dri die treatment at the Cooley house, the sort of treatment specified would not give the Cooleys any significant termite protection, since it would only protect them from dry wood termites in their attic. It is not a sort of treatment that is ordinarily performed. In order to be performed effectively, however, the dri die must be applied in accordance with the label which gives directions for its use. It is required that all wood surfaces be covered with the chemical at a recommended rate of one pound per one thousand square feet of area. At the Cooley residence, dri die was placed in the area, however, it was placed in a small pile in one part of the attic. It was not evenly spread, all wood surfaces were not covered, and insufficient chemical was utilized. The treatment specified would have provided the Cooleys only with dry wood termite prevention in the one part of the attic where the chemical was piled. The treatment was not in accordance with the label instructions, and was substandard. On or about September 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mr. and Mrs. Walter J. Delaney, for their residence in Lake Worth, Florida. The type of chemical specified for use in the contract was chlordane. The contract sets out the street address and zip code of the Delaneys' residence, but does not state the city. The address set out on the contract is sufficient to establish the location of the Delaneys' residence. Only hearsay evidence was offered at the final hearing to indicate what, if any, representations the Respondent made to the Delaneys in order to induce them to enter into the contract. The work performed by the Respondent on the Delaney home was insufficient to comport with the label instructions for application of chlordane, was substandard, and did not provide the Delaneys with the protection specified in the contract. The Delaneys' home is of concrete slab on-ground construction. The foundation is constructed of hollow masonry units. The voids in the hollow masonry units were not each treated as required on the chlordane label. Only one drill hole was made on the south side of the house and none were made on the north side. Several drill holes were made on the other sides of the house, however, four of them were fake, in other words they did not go all the way through the slab. On or about September 28, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Ann Sahlem, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. Only hearsay evidence was offered to establish what representations, if any, were made by the Respondent to induce Mrs. Sahlem to enter into the contract. The work performed by the Respondent on the Sahlem residence did not comport with the label instructions for us of chlordane, was substandard, and was not sufficient to provide Mrs. Sahlem with the protection specified in the contract. The Sahlem residence is constructed on an on-ground concrete slab. The foundation is constructed of hollow masonry units. The voids in each of the hollow masonry units were not filled as required by the chlordane label. No drill holes were made on the west side of the home, and only one was made on the east side. On the north side of the home the holes were too far apart to treat all of the voids. The address set out on the Sahlem contract does not give the city of Mrs. Sahlem's residence although it does give the street address and zip code. The address as given is sufficient to identify the residence. On or about September 30, 1977, the Respondent entered into a subterranean termite control contract and service agreement, and a dry wood termite attic prevention treatment agreement with Mrs. Elizabeth A. Hughes. The chemical specified for use in the subterranean termite control contract was chlordane. The chemical specified in the dry wood termite prevention treatment was "dri die". The contracts were for Mrs. Hughes' residence in Lake Worth, Florida. The contracts do not specify the city of Mrs. Hughes' residence, although the street address and zip code are set out. The address as set out is sufficient to adequately identify the location of Mrs. Hughes' residence. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations to Mrs. Hughes to induce her to enter into the contracts. The work performed under the contracts was, however, not in accordance with the label instructions for chlordane and dri die treatments, was substandard, and was not sufficient to provide the treatment specified in the contracts. Mrs. Hughes' home is constructed on a concrete slab. The foundation is constructed of hollow masonry units. The voids in the masonry units were not each treated as required on the chlordane directions. Furthermore, the drill holes were made three feet above the ground along one wall, and five feet above the ground along another wall, which would be insufficient to allow introduction of the chemicals below the concrete slab. The dri die was not distributed evenly over the attic wood surfaces as required on the dri die label. An insufficient amount of the chemical was utilized, and it was placed at one spot in the attic. The dri die treatment was unnecessary, and even if it had been advisable, it was not accomplished in a manner which would provide any useful protection to Mrs. Hughes. On or about October 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs.. Fred J. Schultz. The contract was for Mrs. Schultz's residence in Lake Worth, Florida. No direct evidence was offered to establish what, if any, representations were made by the Respondent to induce Mrs. Schultz to enter into the contract. It appears that the contract was solicited and performed by employees of the Respondent, and not by him directly, although he signed the contract and was responsible for the work. The chemical specified for use in the contract is Gold Crest, 72%, which is a trade name for chlordane. The work performed by the Respondent did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. The Sdchultz's home is constructed on piers with a crawl space. The instructions for application of chlordane contained in the label provide that in treating such structures it is necessary to either rod or dig a narrow trench to the top of the footing along the inside of the foundation walls, around all piers, sewers, pipes, and conduits; and to rod or dig a narrow trench to the top of the footing along the outside of the foundation wall. The Respondent, or his employees who performed the work at the Schultz residence did not make any trenches whatever, and did not even enter the crawl space below the Schultz's home in order to treat the piers. No evidence was presented from which it could be determined that the Respondent performed any dry wood termite treatment on the Schultz's residence. No evidence was presented from which it could be determined that any such work that may have been performed was done improperly, or that it was accomplished with or without a contract. On or about October 21, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Hulda Radke. The contract related to Mrs. Radke's residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. The Respondent also entered into contracts to perform home repairs for Mrs. Radke. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations in order to induce Mrs. Radke to enter into the contract for termite control. The termite control work performed by the Respondent on Mrs. Radke's residence did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. Mrs. Radke's home was of pier constructions with a crawl space. No trenches were made, and the chemical was not trenched or rodded around each pier, and around each foundation wall. The chemical was broadcast along the top of the soil, but was not placed below the surface. The label instructions specify that a chemical should not be broadcast sprayed. On or about October 26, 1977 the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Charles Thompson, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. No direct evidence was offered to establish what, if any, representations were made by the Respondent to induce Mrs. Thompson to enter into the contract. The work performed by the Respondent on the Thompson residence did not comport with the label instructions for use of chlordane, was substandard, and was insufficient to provide the protection specified in the contract. The Thompson residence is of pier and crawl space construction. No trenches or rodding was done as specified on the chlordane label, and each pier was not treated. The address set out on the Thompson contract is insufficient. It gives only a street address, and no city or zip code. The Respondent testified that he used a process known as "long rodding" to treat under concrete slabs. Long rodding is a method whereby the end of a spray assembly is extended, and chemicals introduced under a slab. It is used typically where hollow masonry is not used in constructing the foundation. The process does not work well because the end of the rod cannot be adequately controlled. Even if this process were utilized, the chlordane label would required that all voids in hollow masonry units be treated. Failure to treat each of the voids would render the treatment substandard. It appears that since these incidents occurred, the Respondent has performed numerous termite control contracts in Hillsborough and Pinellas counties without complaint.
The Issue General Project Description 6 Economic Benefits and Cost Savings from Project 7 Fuel Cost Savings from Conversion to Orimulsion 7 Socioeconomic Impacts and Benefits of the Project 10 Project Site and Vicinity 13 Lan Use and Comprehensive Plan Consistency 14 Existing Plant and Facilities 16 Orimulsion Conversion Project; Modified and New Facilities 20 Fuels and Fuel Delivery, Storage and Transportation 20 Air Emission Controls 22 Water Uses and Treatment 24 By-Product Reuse and Disposal 24 Rail and Road Improvements 28 Surface Water Management Systems 29 Project Construction and Schedule 30 Transportation 31 Noise Impacts 34 Archaeological and Historic Sites 34 Air Emissions, Controls, and Impacts 34 Existing and Proposed Emissions 34 Best Available Control Technology for 36 Nox Air Quality Impact Analysis 45 Effect of Proposed NOx Emissions on Ozone Levels 46 Effect of Proposed NOx Emissions on Water Quality 51 Human Health Risks Associated with Proposed Air Emissions 57 Plant Water Supply and Use 59 Water Supply 59 Cooling Pond 62 Impacts of Groundwater Withdrawals and Discharges 64 Wetland Impacts and Mitigation 68 Impacts to Flora and Fauna Including Listed Species 70 Impacts of Water Withdrawals on Little Manatee River and Tampa Bay 71 Potential Impacts of Fuel Spills 75 Spill Prevention 76 Spill Mitigation 79 Ecological Effects of Orimulsion Released in Tampa Bay 87 COSAP's Comparative Ecological Risk Assessment (CERA) 90 COSAP CERA Conclusions 92 Peer Review of COSAP Research and Conclusions 92 Effects of Estrogenic Compounds Following a Spill 93 Summary of Comparative Spill Risks 95
Findings Of Fact General Project Description FPL proposes to convert its existing 1600 megawatt (MW) power plant in Manatee County, Florida (the Plant), to the use of Orimulsion. The existing Plant currently operates only on relatively expensive low-sulfur fuel oil. The conversion of the Plant to the use of Orimulsion will realize significant savings in fuel costs to FPL's customers because Orimulsion will be supplied at prices much lower than the current costs for the fuel oil burned at the Plant. As a result, the Project will allow FPL to increase the average annual capacity factor of the Plant from its historical level of 30 percent up to 87 percent. Orimulsion is a mixture of bitumen, a heavy hydrocarbon, and water. Orimulsion is produced in Venezuela and will be supplied to FPL under a 20-year contract with Bitor America Corporation (Bitor). The new fuel will be shipped by Bitor America to Tampa Bay, unloaded by FPL at an existing FPL fuel terminal at Port Manatee, and sent to the Plant via an existing pipeline. The Project will involve installation of new pollution control equipment, new combustion controls, and efficiency enhancements to the existing boilers. The air pollution control equipment will be designed and constructed by Pure Air, a partnership of Air Products and Chemicals Inc. and Mitsubishi Heavy Industries America Inc. Pure Air of Manatee, a subsidiary of Air Products and Chemicals, will operate the pollution control equipment. Other than this equipment and ancillary facilities, few changes to the existing plant itself will be required. Economic Benefits and Cost Savings from Project Fuel Cost Savings from Conversion to Orimulsion The conversion of the Plant to burn Orimulsion is the best way that FPL has found to reduce the cost of the electricity it produces and to reduce FPL's dependency on any single type of fuel. The conversion is projected to result in approximately $4.0 billion (or $1.5 billion net present value in 1998 dollars) of savings to FPL's customers over 20 years under FPL's base case, or most likely fuel price forecast. These savings represent the net amount by which FPL's savings in fuel costs ($4.4 billion) and SO2 emission allowance costs ($169 million) are projected to exceed FPL's revenue requirements for the Plant modifications over 20 years ($180 million) and increased operation and maintenance costs ($382 million). FPL sought advance approval from the Florida Public Service Commission (FPSC) of the method for recovering the costs of the Project and the method of passing through to its customers the Project's net savings. In Order No. PSC-94-1106-FOF-EI, issued September 7, 1994, the FPSC found that "FPL's plan to convert its two Manatee units to burn Orimulsion is reasonable and prudent." Under that order, the net savings from the Project will be passed on directly to FPL's customers through reduced charges in the fuel cost recovery clause portion of customers' monthly bills. These fuel savings result because Orimulsion is priced by contract equivalent to the price of coal delivered to the St. Johns River Power Park plant in Jacksonville. The price of that coal is much lower than the price of oil or natural gas that FPL purchases, and coal prices are forecast to remain low and stable in the future. It is expected that the Plant's reduced fuel cost will cause the Plant to run more often under the principle of economic dispatch by which FPL operates its generating system. Orimulsion burned at the Plant will also displace the burning of higher- priced fuels elsewhere on FPL's system, to the extent not required as a result of population growth or changes in arrangements for the purchase of power, as other units using higher-priced fuels are operated less frequently. To determine whether the Project would provide savings under extreme conditions, FPL performed what it called an "acid test" analysis which assumed that future prices of oil and gas would not continue to diverge from the price of coal and Orimulsion. Under this conservative (though unlikely) scenario, the Project would still produce approximately $655 million ($261 million net present value in 1998 dollars) of savings to FPL's customers over 20 years. The Project is a continuation of the effort that FPL began in the late 1970's to obtain a balanced fuel mix, so that future volatility in the price of oil, and events such as the oil shocks of the 1970's, would not affect the cost of electricity to FPL's customers. FPL has reduced the amount of oil-fired generation in its fuel mix from 56 percent in 1981 to 31 percent in 1994 by the addition of nuclear and coal plants to its system, as well as by obtaining firm supplies of natural gas. With the conversion of the Plant to Orimulsion, oil generation would be reduced to 9 percent of FPL's energy mix by 1999. From an economic perspective, the Plant is the best site for an Orimulsion conversion. Because of economies of scale in converting a large plant to a new fuel, and because the Plant currently burns one of the most expensive grades of fuel oil on FPL's system, conversion of the Plant maximizes the Project savings. The Plant has port access and a pipeline which facilitates the safe and economic delivery of Orimulsion. As one of the newest plants in the FPL system, the Plant will have a long time in service following conversion. It is reasonable to expect that Orimulsion will be a stable fuel source. Bitor America Corporation is a wholly-owned subsidiary of Bitor S.A., which in turn is a wholly-owned subsidiary of Petroleos de Venezuela, the national energy company of Venezuela and the fourth largest energy company in the world. Petroleos de Venezuela companies have an excellent record of contract performance. The recoverable reserves of bitumen from which Orimulsion is made exceed 40 billion metric tons, comparable to the amount of crude oil in Saudi Arabia. Fuel production facilities planned and in place in Venezuela are more than adequate to meet the needs of the Plant. The conversion of the Plant to natural gas is not a viable alternative. Such a conversion would not reduce electricity costs to FPL's customers, but instead would increase them by approximately $233 million over 20 years due to the relatively higher cost of natural gas compared to the No. 6 fuel oil currently used at the Plant. Socioeconomic Impacts and Benefits of the Project The Project will have a positive impact on the economy of Manatee and Hillsborough Counties. Construction employment will average 347 direct employees over the two-year construction period, for a direct payroll ranging from $12.5 to $17.5 million in 1996, $19.0 to $24 million in 1997, and over $2 million in the first quarter of 1998. An average of 333 indirect jobs also will be created during construction by increased expenditures of construction employees, for average indirect wages of $6.4 million a year. Operation of the Project will result in 190 new jobs with an annual payroll of about $4.5 million. This includes 40 direct permanent jobs at the Plant with an annual payroll of $1.5 to $2.0 million, and 69 additional indirect jobs with a $1.3 million annual payroll. Trucking of limestone, gypsum and fly- ash will create another 45 direct jobs and 36 indirect jobs, with a combined annual payroll of $1.5 million. FPL's property taxes paid to Manatee County government will increase by $700,000 per year and port charges paid by FPL to Port Manatee for fuel shipments through that port will more than triple, to about $2.2 million per year. Assuming that the new operations employees will be new residents to the area, the increased employment will result in approximately $203,000 of additional costs to Manatee County for community services. This compares to additional tax revenues to Manatee County from those families and the Plant of about $2,530,000 per year, for a net positive governmental revenue impact of about $2.3 million per year. Additional annual tax revenues of $108,000 to Hillsborough County are within 10 percent of the additional annual cost of services of about $119,000 per year for employees expected to reside in that County. Fuel savings from the Project will have a significant positive impact on economic activity in the state. The $4.0 billion in net savings over 20 years will generate an average of $136 million a year in increased sales or business activity in the state, $41 million a year in increased earnings, and an average of 2,056 new jobs, in addition to the local economic impacts of construction and operation of the Plant. Overall electric bill savings to tax-supported governmental customers of FPL will range from $1.75 million to $22.83 million a year, even assuming that these customers' electric consumption does not increase from 1994-95 levels. This money will be available either to fund additional governmental services, or to reduce or offset tax increases. The Project will enable FPL to be a more competitive electric utility by substantially reducing its fuel costs, which are about 99 percent of the variable costs of generation, about two-thirds of the total cost of generation, and about one-quarter of the retail price of electricity. Conversion will make the Plant cost competitive with coal-fired plants in adjacent and nearby states, with which FPL will have to compete if and when retail wheeling -- the ability of customers to choose their supplier of electric generation -- becomes a reality in Florida. In the long run, by allowing FPL to remain a low-cost provider of electricity, the Project will help keep electric generating business activity in Florida, with the associated jobs, tax revenues, and economic activity. This creates a win- win-win situation for FPL's customers, FPL's investors, and the citizens of Florida. Project Site and Vicinity The site of the Project is within the existing 9,500- acre Plant site. This site is located in the unincorporated, north-central area of Manatee County, Florida. The site is approximately 15 miles northeast of Bradenton and 25 miles southeast of Tampa. The site is located north of State Road 62 and approximately 5 miles east of both the community of Parrish and U.S. 301. Saffold Road marks the eastern boundary of the 9,500-acre site while an FPL-owned railroad line is along the western boundary of the site. The Little Manatee River flows through the northern boundary of the Plant site. Principal access to the Plant site is provided from State Road 62 which intersects with U.S. Highway 301 to the west. The FPL-owned rail line that serves the site connects to the Palmetto area, southeast of the Plant. An existing FPL fuel pipeline connects the Plant site to Port Manatee, approximately 14 miles to the northwest. Existing electrical transmission lines run east and west from the Plant site. The Project will be undertaken within a 470-acre parcel which encompasses the existing Plant and other existing facilities, including two 500,000-barrel fuel storage tanks, wastewater treatment areas, switchyards, and other buildings. The Project site also includes areas that are currently used for agriculture that may be used for storage and disposal of by- products from the new pollution control equipment. The existing 9,500-acre site includes a 4,000-acre cooling pond which provides cooling water to the power plant. A makeup water pumping station located on the Little Manatee River provides makeup water to the cooling pond. A spillway structure for emergency releases during high water levels in the pond is also located along the Little Manatee River. Other on-site facilities include various maintenance buildings, an existing electrical switchyard and an on-site rail spur. The other areas of the Plant site are used for various agricultural, cattle or timber operations. Existing land uses within 5 miles of the Plant site consist mainly of agricultural and pasture lands, interspersed with low-density residential areas and undeveloped vegetative areas. Individual residences are located on one of the two outparcels that are located within the boundaries of the Plant site, as well as along State Road 62 at the southern perimeter of the site and along Saffold Road to the northeast. FPL also owns and operates an existing fuel terminal along the eastern edge of Tampa Bay as an associated facility for the Plant. The 55-acre fuel terminal is located at Port Manatee, approximately 14 miles northwest of the Plant in the unincorporated area of northwestern Manatee County. Light and heavy industrial uses are located in the immediate area surrounding the terminal. Land Use and Comprehensive Plan Consistency The site is an appropriate location for the Project from a land use planning perspective and will not cause any adverse impact on land use. The Project involves installation of pollution control equipment at an existing power plant site that has been used for power generation since the 1970s. The area in which the Project will be undertaken is located some distance from adjacent to surrounding properties. A 350-foot landscaped buffer will be established adjacent to the nearest property west of the Project area. A landscaped buffer will also be established to screen the site from residences located to the south along State Road 62. The Project also will comply with the development standards contained in the Manatee County Land Development Code, with the exception of one aspect of the landscape standards for which FPL is seeking a variance. The Manatee County Code, Section 715.6.5, allows the County Planning Director to approve relocation of up to 30 percent of the required landscaping to another portion of the site. The requested variance would allow 100 percent of the landscaping materials normally installed as foundation plantings for new buildings and parking lots to be placed instead within the designated landscape buffers near the boundaries of the site. The variance would allow landscaping to be done where it would benefit the most people. The Project will comply with all other applicable ordinances and regulations of Manatee County, including the County noise ordinance and building codes, if the 53 conditions recommended by Manatee County are included in the certification order. The Project, if approved with the conditions proposed by Manatee County, is consistent with the goals, objectives and policies of the adopted Manatee County Comprehensive Plan with one exception relating to the wetland mitigation ratios contained in the Comprehensive Plan. The site is designated for power plant use under the Manatee County Future Land Use Map under both the agricultural rural classification and the Public/Semi-Public I uses. Objective 3.2.1 of the County's plan is to maintain and enhance water quality and quantity of Lake Manatee; the Project is consistent with the septic tank use and other policies through which the objective is to be achieved under the plan. The Project will comply with Manatee County zoning standards. The Project site also is consistent with the goals and objectives of the State Comprehensive Plan and the Comprehensive Regional Policy Plan of the Tampa Bay Regional Planning Council. Existing Plant and Facilities The Plant currently consists of two oil-fired generating units of 800 MW each, for a total generating capacity of 1600 MW. The first unit went into service in October 1976, and the second unit in December, 1977. Electricity is generated in the existing units by combusting fuel in the boilers. The heat of combustion converts water in the boiler tubes to high pressure steam. This steam drives a large steam turbine which is connected to an electrical generator. Electricity then flows out to the existing switchyard and out of the site over the existing transmission lines. The Plant currently burns low-sulfur No. 6 fuel oil with a sulfur content no greater than 1 percent. No. 6 fuel oil is principally the residue of operations in which light and medium crude oils are fractionally distilled and processed to produce gasoline, diesel fuel, and other products. As the "bottom of the barrel," No. 6 fuel oil is a heavy viscous material from which higher value products can no longer be economically recovered. The Plant is also currently permitted to burn No. 2 fuel oil, natural gas, and on-specification used oil from FPL operations. Existing controls for air emissions include several combustion techniques within the boiler to minimize formation of nitrogen oxides (NOx). Particulate matter (PM) from fuel combustion is controlled using mechanical dust collectors that use centrifugal force to remove PM from the flue gas. Emissions of sulfur compounds, such as sulfur dioxide (SO2), are controlled only by limiting the sulfur content of the fuel oil. Cooling water is continuously pumped from the cooling pond through the Plant condensers and heat exchangers that absorb the rejected energy from the steam turbine. Heated water from the condensers is discharged back into the cooling pond where the energy is dissipated to the atmosphere through evaporation. Ultimately, the cooling water circulates through the pond back to the Plant intake structure and is recirculated through the Plant condensers and heat exchangers. Water loss is continually experienced in the cooling pond as a result of evaporation. Water losses from the pond also occur due to seepage through the pond embankment and bottom and as a result of other Plant water consumptive uses. Makeup water is therefore required to maintain the pond at its design operational level. Makeup water is currently provided through a combination of rainfall and water diverted from the Little Manatee River. A system of toe drains around the perimeter of the pond also captures the seepage through the embankments and returns that water to the pond. Service water, including process water for current operation of the Plant, is primarily obtained from the cooling pond, with three existing on-site wells used as a backup source. Service water is used for various processes in the Plant, such as soot blowing from boiler surfaces and for fire protection. The Plant process water system also provides ultra-pure water for the Plant, such as for makeup to the steam and water cycles in the power generating process. The existing wastewater treatment facility for the Plant includes two lined neutralization basins, two lined solids settling basins, a drying basin, and a lined stormwater basin for collection of runoff from equipment areas. Such stormwater runoff is stored in the stormwater basin, drained through an oil/water separator and recycled to the cooling pond. Industrial wastewaters are treated either in the neutralization basins or in the solid settling basins and recycled to the cooling pond. Collected solids are periodically transferred to a drying basin where they are stored and dried prior to off-site disposal in a licensed facility. FPL receives No. 6 fuel oil for the Plant at Port Manatee, to the northwest. Fuel is stored at the existing fuel terminal near Port Manatee, transferred to the Plant via a 14- mile-long buried pipeline, and then stored in storage facilities at the Plant. At Port Manatee, vessels are moored at the port berth and unloaded through dockside unloading hoses. Fuel unloading is monitored continuously by personnel at the dock as well as operators at the terminal. Fuel is transferred from the port berth to the FPL Port Manatee terminal via a 1.7-mile, 30-inch diameter pipeline which is cathodically protected against corrosion and hydrostatically tested annually to insure its continued integrity. At the Port Manatee terminal, fuel is stored in two 500,000-barrel fuel storage tanks that are contained within earthen berms to provide secondary containment in the event of an overfill or loss of a storage tank. The four fuel storage tanks at Port Manatee and at the Plant are equipped with safety shutdowns to prevent overfilling of the tanks. The four storage tanks are cathodically protected against corrosion. Fuel is transferred from the Port Manatee terminal to two 500,000-barrel fuel storage tanks at the Plant via a 14-mile- long, 16-inch-diameter steel pipeline. The pipeline is jacketed and coated to provide corrosion resistance and also is cathodically protected by an impressed electrical current to dampen corrosion of the pipeline. The pipeline is equipped with a midpoint block valve as well as valves at the terminal and at the Plant ends of the pipeline. Both pipeline facilities are patrolled at least 26 times a year by FPL and are enrolled in the State's "One-Call" locating system to advise FPL in the event that excavation occurs near the pipelines. During all transfers of fuel, continuous monitoring of the transfers is conducted by monitoring the volumes of fuel transferred across the pipeline. Orimulsion Conversion Project Modified and New Facilities Conversion to Orimulsion will involve changes to several of the existing facilities and the installation of new equipment, principally for the control of air emissions. Enhancements to heat transfer surfaces within the existing boilers will allow them to operate more effectively and efficiently with the firing of Orimulsion. Fuels and Fuel Delivery, Storage and Transportation Orimulsion is an emulsion composed of approximately 70 percent bitumen and 30 percent water, with less than 0.65 percent additives, including a nonylphenol polyethoxylate surfactant. The surfactant in Orimulsion comprises approximately .17 percent (+/- .02 percent) by weight of Orimulsion, and may be increased in the future to as much as .2 percent (+/- .02 percent), for a maximum of .22 percent. Orimulsion is currently used as a boiler fuel in 6 power plants in England, Denmark, Japan and Canada. After conversion, FPL may use high-sulfur fuel oil (HSFO) with maximum sulfur content of 3.0 percent, as an alternative fuel at the Plant if Orimulsion is not available. Low-sulfur fuel oil will also be an alternative fuel. No. 2 fuel oil, natural gas and/or propane may be fired during unit startup. On- specification used oil from FPL operations may also be fired. Orimulsion will be transported from Venezuela to Port Manatee by Bitor America Corporation. Ownership of the Orimulsion will transfer to FPL when the fuel passes the flange between the vessel and offloading hose at Port Manatee. Following the conversion of the Plant to Orimulsion, there will be approximately 100 vessels each year delivering Orimulsion to Port Manatee, which is approximately double the number of current No. 6 fuel oil deliveries to FPL. The system used currently for delivery of No. 6 fuel oil from Port Manatee to the Plant will be used in the future for deliveries of Orimulsion. Prior to the conversion of the Plant to Orimulsion, new unloading hoses will be installed at Port Manatee and pressure tested to insure their structural integrity. All four fuel oil storage tanks will be inspected and improved through the installation of internal fiberglass liners. The 14-mile fuel delivery pipeline will be electronically inspected using a "smart pig" that will survey the wall thickness of the entire circumference of the pipeline. Following conversion, a "smart pigging" inspection program will be implemented for the 14-mile pipeline with the first inspection within 30 months and then conducted every five years. The monitoring system for the 14- mile fuel pipeline will be upgraded to incorporate a computer- based monitoring system that will be tied into FPL's leak detection system for the pipeline. This new leak detection system will lower the detection limit for the pipeline down to 25 barrels. In addition, FPL will continue to perform tank-to-tank mass balances and end-of-batch inventory reconciliation to track fuel leaving the terminal and arriving at the Plant. These measures will allow FPL to detect a leak as small as 1/64th of an inch in the pipeline. These fuel storage and transportation facilities will continue to be operated in accordance with all applicable regulations. Over the past 17 years, FPL has experienced no leaks or breaks in these pipelines. In the event a future leak or break occurs, operation of the pipeline involved will be halted immediately upon detection and the pipeline will be surveyed to locate evidence of fuel outside the pipeline. FPL would then conduct appropriate cleanup and remediation, using techniques similar to those used to clean up fuel oil spills on land. Air Emission Controls Within the boilers, the existing fuel burners will be replaced with new low-NOx burners that will control the formation of NOx during combustion. Reburn technology also will be installed in both boilers to stage the combustion process and further minimize the formation of NOx. The new low-NOx burners and reburn fuel injectors will replace the existing NOx controls for the Plant. Two electrostatic precipitators (ESPs) will be installed for each generating unit to control particulate matter (PM) resulting from fuel combustion. The ESPs remove PM by passing it through an electrical field. A negative charge is placed on the PM, causing it to migrate toward positively charged plates in the ESP. The PM collects on the surface of the plates and is periodically removed by rapping the plates, causing the layer of collected dust to shake loose and fall to compartments at the bottom of the ESP as flyash. Approximately 90 percent of the PM entering the ESP will be removed. The ESPs also will remove toxic substances from the flue gas. Following the ESPs, a flue gas desulfurization (FGD) unit, or scrubber, will remove SO2 and other sulfur compounds from the flue gas. Flue gas enters the scrubber where it meets a limestone/water slurry mixture and the limestone reacts with the SO2, forming calcium sulfate or gypsum. The water and gypsum fall into a tank at the bottom of the scrubber. The clean flue gas then passes through a mist eliminator, which recovers some of the water vapor in the flue gas. The clean flue gas then exits the Plant via the existing chimneys or stacks. The scrubber will remove 95 percent of the SO2 formed during combustion. ESPs and scrubbers are well-proven technologies that have been in use for more than 30 years. Limestone used in the scrubber will be delivered by truck to the site. It will be transferred to a receiving hopper and then into on-site limestone storage silos, which will provide three days of storage. A backup limestone storage pile, providing 30 days of supply, will also be established to insure limestone availability if deliveries are interrupted. The limestone will be processed in a ball mill, combining it with water and grinding it to a fine consistency to create the limestone slurry used in the scrubber system. Measures will be taken during delivery and transfer of limestone to control emissions of PM and fugitive dust that might be generated. These measures include covered trucks, paving of on-site roadways and use of covered transfer conveyors. The limestone will be moist when received and therefore will not be dusty. However, water sprays will be used on the open storage pile if it gets dusty from prolonged dry periods. Water Uses and Treatment The conversion to Orimulsion will increase service and process water uses within the Plant. The principal increase in such water use will be for the new pollution control equipment. Water from the groundwater wells will be used directly in the scrubber with a membrane softener system added, if needed, to treat hardness in the well water. Additional process water treatment systems will be installed, consisting primarily of an upgrade of an existing reverse osmosis plant to provide up to 500 gallons per minute of process water for use in the boiler makeup water system and in soot blowing. The existing industrial wastewater treatment system will continue to handle wastewaters produced by the converted Plant with a new wastewater treatment plant added to treat rinse and wash waters from the existing solids settling basin. Treated wastewaters from both the wastewater treatment system and the water treatment systems will be recycled to the cooling pond to the maximum extent practicable. The existing potable water treatment system and domestic wastewater treatment system will not require any changes as a result of the conversion except to extend distribution lines and service lines, respectively, to the new buildings. By-Product Reuse and Disposal Gypsum recovered from the scrubber will be dewatered, filtered, and rinsed to produce high-quality gypsum usable as the primary ingredient in wallboard or dry wall. Pure Air of Manatee has a 20-year contract for National Gypsum to use the scrubber gypsum to produce wallboard at its Tampa production plant. Use of scrubber gypsum to manufacture wallboard has occurred for many years, including use by National Gypsum. In addition to this major off-site use of gypsum, Pure Air has contracts to supply local cement manufacturers with gypsum for use in the manufacture of Portland cement. The combined capacity of the contracts is greater than the converted Plant's annual gypsum production. Flyash will be collected in the ESPs and conveyed by pneumatic conveyor system to totally enclosed silos. The flyash will then be fed into a processing facility to make commercial by- products for shipment to off-site users. Pure Air has developed several potential commercial uses for flyash with the primary market expected to be the asphalt products industry. Pure Air is seeking to sell all of the flyash to that industry. In addition, flyash may be sold for use in Portland cement manufacturing. These environmentally sound uses of flyash would add value to the ultimate products produced. The volume of flyash to be produced at the Plant could be used entirely by three cement manufacturers within the Manatee County/Hillsborough County area. A 15-acre temporary storage area for the gypsum by- product will be constructed west of the existing Plant. The purpose of this temporary by-product storage area is to stockpile gypsum so that it can be supplied to the off-site users when the Plant is shut down for maintenance or to store it during periods when the wallboard manufacturer or cement plants may not be in operation. Normally, one to two months of gypsum will be stored in this area, which will have capacity for up to six months of gypsum production. Gypsum will be trucked to the on-site temporary by-product storage area over internal roads. It will be reclaimed as needed and transported to the various manufacturing facilities. While there are no specific agency regulations or design standards that apply to the design and operation of the temporary by-product storage area, FPL has committed that the storage area will be lined with a composite gypsum/synthetic liner designed in accordance with DEP's liner requirements for phosphogypsum management under Rule 62-673, F.A.C. The design of the storage area will comply with all of the design criteria of DEP Rule 62-673, F.A.C. Use of these design standards as a guide will insure that surface water and groundwater will be adequately protected from any impacts associated with the temporary by- product storage area. The temporary by-product storage area is outside the 100-year flood plain, is not located within 200 feet of any natural or artificial surface water body that might receive untreated surface discharges, and is not within 500 feet of an existing or approved drinking water supply. Any rainfall that contacts the stored gypsum will be collected and used as makeup water in the pollution control system and not discharged off-site. The storage area will be bermed to contain rainfall from a 100-year/24-hour storm event. Groundwater monitoring wells will be installed around the temporary by-product storage area and sampled semiannually to monitor for any possible groundwater contamination from the storage area. To insure long term operation of the converted Plant, the Project design has included a 158-acre on-site disposal area for gypsum and flyash. The long-term disposal area will only be constructed if it becomes infeasible, impracticable, or uneconomical to continue to sell the by- products or to use off- site disposal facilities. The backup by-product disposal area would be located west of the existing units and is sized to hold 100 percent of the by-products generated over a 20-year period. While no specific agency regulations or design standards apply to the backup by- product disposal area, it would be designed in accordance with the requirements of Rule 62-701, F.A.C., which establishes design standards for Class I landfills. The gypsum disposal area, designed for a full 20 years of by- product, would be approximately 100 acres with a maximum height of 115 feet above ground surface. The separate flyash disposal area would be approximately 20 acres with a maximum height of 45 feet. The other 38 acres would be used for stormwater and leachate ponds and perimeter berms and roads. The disposal areas would be divided into ten phases or cells, each holding approximately two years of ash or gypsum production from the Plant. This phasing would minimize the required construction which further minimizes environmental damage, including impacts to wetlands. A 350-foot-wide vegetated buffer would be maintained between the western edge of the disposal area and the FPL property line along the nearest outparcel. The by-product disposal area will be constructed with a double liner system to prevent impacts to groundwater. The bottom liner will be above the seasonal high groundwater table. The disposal area will have a primary leachate collection system above the upper liner and a secondary leachate collection system between the upper and lower liners. The leachate will drain to sumps in the leachate collection system and then will be pumped to two double-lined leachate ponds capable of containing a 25- year/24-hour storm event with three feet of freeboard. Any leachate collected in the ponds will be pumped for use in the pollution control equipment and not be discharged off-site. Once a disposal cell is filled, it will be closed and capped with a synthetic geomembrane and protected by about two feet of soil to prevent rainfall from leaching in and contacting the gypsum or flyash. The soil will be grassed to prevent erosion. Following closure of the disposal area, continuing maintenance and monitoring will be undertaken. Rail and Road Improvements FPL will construct new turn lanes and acceleration lanes at the intersection of the Plant entrance road and State Road 62. These roadway improvements will facilitate turning in and out of the Plant and reduce delays for through traffic on State Road 62. FPL will improve the existing rail line serving the Plant and install a new rail curve where the existing Plant spur intersects with the existing rail line north of the Plant. The existing rail line between the Plant and Palmetto will be repaired and maintained to American Railway Engineering Association Class I standards. This rail line will be used for delivery of materials during construction and maintenance of the existing units and in the future, if feasible opportunities or needs develop, to transport limestone to the site and remove gypsum and flyash from the site. Surface Water Management Systems Construction and operation of the Project will involve treatment, storage and management of surface water runoff resulting from rainfall on the Project site. A surface water management system and associated facilities, consisting of a series of swales, culverts, and treatment ponds, already exist within much of the Project site. During Project construction, the existing stormwater treatment areas will provide management of stormwater runoff and will meet the applicable regulations of SWFWMD, Manatee County and other agencies. During operation, rainfall that falls within areas that could potentially be contaminated by fuels are treated as industrial wastewater and treated in the Plant's industrial wastewater treatment system prior to discharge to the cooling pond. As part of the Project, new drainage areas with stormwater runoff that may potentially contact Orimulsion will be isolated from the existing runoff collection system and processed through a new, lined stormwater basin and a new bitumen/water separator. A new stormwater detention pond will be constructed south of the power block to capture and treat runoff from new roadways. A perimeter swale system will be constructed to serve the new railroad curve between the existing main rail line and the existing Plant spur. Rainfall within the area around the three new wells adjacent to the west bank of the cooling pond will be captured in a closed system designed to hold a 100- year/24-hour storm. At the Plant fuel terminal, the existing surface water management system will be modified to incorporate a new bitumen/water separator, in addition to the existing oil/water separator. The water will be discharged within the embankment area around the fuel storage tanks, which has the capacity to hold the rainfall from a 100-year/24-hour storm. For the 15-acre temporary gypsum storage area, a perimeter berm will contain a 100- year/24-hour rainfall within the storage area. This rainfall will be isolated from the watershed and pumped to the pollution control equipment for use as makeup water. For the 158-acre backup by- product disposal area for gypsum and flyash, rainfall that may come in contact with by-products in open cells will be pumped to a separate stormwater and leachate pond and recycled as makeup water to the pollution control equipment. Runoff from closed portions of the disposal area will be routed to new stormwater ponds, treated and pumped to the cooling pond. All of these stormwater management facilities will comply with the criteria for water quality treatment and water quantity retention prior to discharge, as established by the SWFWMD, Manatee County, the DEP and the Steam Electric Guidelines under 40 CFR Part 423. Project Construction and Schedule Construction of the Project will require approximately two years. Following permit approval, construction would commence with the relocation of existing equipment and the installation of foundations for the new pollution control equipment. During initial construction, the Plant would still be operated. For the last 90 days of construction the Plant would cease operation and FPL would undertake the boiler enhancements. This would involve installation of the new low-NOx burners and tie-in of the pollution control equipment. Pure Air will design and install the new pollution control equipment while FPL will be responsible for construction of the boiler modifications and alterations to the fuel delivery system. Construction impacts to natural areas are expected to be minor since much of the construction will be undertaken within the existing developed area of the Plant and only localized excavation, grading and levelling will be necessary. Temporary dewatering of groundwater may be necessary during construction of foundations for the pollution control equipment. Fugitive dust generated from construction traffic and excavation will be minimized by water sprinkling. Other open areas will be either paved or vegetated to reduce fugitive dust and wind erosion. Under the arrangement between FPL and Pure Air, of the total capital cost of approximately $263.54 million, approximately $83.5 million will be paid for by FPL, and $180 million, including pollution control facilities, will be paid for by Pure Air. Transportation FPL conducted traffic analyses to determine if the existing roadways in the area would operate within established levels of service based upon increased volumes of traffic associated both with construction and operation at the site. During construction, the magnitude of traffic impacts will be directly related to the number of construction employees. While peak construction employment is expected to reach 577 employees, for purposes of the traffic impact analysis it was assumed that construction employment would peak at 640 employees, representing a worst case assumption. During Plant operations, 40 new employees are expected to work at the Plant. In addition, trucks will be used to deliver limestone and remove gypsum and flyash from the site. The maximum number of trucks used for this purpose would represent 202 round trips per day, in and out of the Plant site. However, it is expected that the same trucks used to remove gypsum from the site will be used to backhaul limestone into the site. Backhauling would reduce the number of trucks for delivery of limestone and gypsum to about 60 percent of the maximum level. Existing roadways and intersections in the site vicinity are currently operating at acceptable levels of service as adopted by county and state transportation agencies. A traffic impact analysis, using conservative methodologies and assumptions, demonstrated that with the additional Project traffic, the area roadway network and intersections will continue to operate acceptably in accordance with agency standards and levels of service. All of the roadways in Manatee County and Hillsborough County that would be used for truck traffic are designated by functional classifications for truck traffic. All of these roadway segments are currently serving through traffic and truck traffic today. While Project-related traffic will comply with applicable agency standards, FPL has committed to several roadway improvements to enhance traffic-related movements in the area. FPL will construct a left-turn lane from State Road 62 into the Plant entrance, as well as a west-bound acceleration lane along State Road 62 leaving the site. These improvements will reduce delay for traffic travelling along State Road 62 past the FPL site. FPL will fund installation of a traffic signal at the intersection of State Road 62 and U.S. 301 west of the Plant site, if the Florida Department of Transportation decides that traffic signal is warranted. Project truck traffic for delivery of limestone and removal of gypsum will be limited during morning hours when school buses would be operating along the trucking haul route. In addition, FPL will install school bus stop signs and school bus shelters along the primary haul route. FPL will pay its fair share of the cost of any deterioration of area roadway surfaces caused by the Project's trucks. These improvements are beyond what would be required to comply with applicable agency standards as all of the roadway facilities are operating within agency standards. Rail delivery of limestone and removal of gypsum was considered during the original development of the Project. However, rail shipments of these products was deemed not to be feasible currently for several reasons. Investigations showed that both the gypsum that would be produced at the Plant and the limestone and limerock likely to be delivered to the Plant cannot be unloaded from conventional rail cars, based on testing of available rail car types. Several of the limestone quarries that may be used to supply limestone do not have rail access or rail facilities. Also, National Gypsum does not have rail facilities for unloading gypsum at its existing plant. Moreover, if use of rail shipments were feasible, trains hauling gypsum to the Tampa wallboard manufacturing plant would pass through 150 at-grade crossings in Manatee and Hillsborough counties and the rail route would go through downtown Tampa. Noise Impacts Noise impacts from the Project will not exceed applicable noise standards. Archaeological and Historic Sites The Project will not affect any known archaeological or historical sites. Appropriate Conditions of Certification have been proposed to protect such resources if discovered later. Air Emissions, Controls, and Impacts Existing and Proposed Emissions FPL received air construction permits for the Plant units from the Florida Department of Air and Water Pollution Control (DWPC) in 1972 and air operation permits from the Florida Department of Environmental Regulation (DER) in 1977 and 1978. FPL currently utilizes fuel quality and combustion controls to achieve existing permitted emission limits for SO2, NOx, PM, and visible emissions. The existing emission limits for SO2 and NOx are more stringent than emission limits for most power plants in Florida. Although the Plant units currently are permitted to operate at a 100 percent capacity factor (i.e., utilization rate), the units historically have operated at an average annual capacity factor of approximately 30 percent, due in large part to fuel oil costs. As a result of the conversion to Orimulsion, the Plant units are expected to operate at an annual average capacity factor of 87 percent. Despite the increase in Plant utilization, total short-term (hourly) and total annual (tons per year or "tpy") air emissions are expected to decrease in comparison to both permitted and historical levels. With installation of FGD, actual emissions of SO2 will decrease by approximately 13,000 tpy or 45 percent from historical levels. Similarly, with installation of ESPs, annual emissions of PM and toxic substances also will decrease, and visible emissions will be limited to 20 percent opacity instead of the 40 percent level authorized under existing permits. Although low-NOx burners and reburn technology will be installed on both units to achieve a reduction from the existing short-term NOx emission rate, annual emissions will increase by approximately 6,000 tpy due to increased Plant operation. Likewise, short-term emissions of carbon monoxide (CO) will decrease; but annual emissions will increase by approximately 3,500 tpy. Because the converted Plant is expected to displace other plants in FPL's generating system, it is expected that the Project also will affect air emissions on a system-wide basis. Based on an analysis of projected fuel usage and emission rates for the various units in FPL's system through the year 1999, the Project will result in system-wide reductions in air emissions of all pollutants except CO. In the first year of Project operation, for example, system-wide emissions of CO are predicted to increase by 2,607 tons; but there will be significant reductions in all other pollutants, including PM (-2,252 tons), SO2 (-48,626 tons), NOx (-10,425 tons), volatile organic compounds or "VOCs" (-109 tons), and toxics (-181 tons). The analysis made appropriate assumptions concerning other FPL permits, power purchase contracts and changes in power demand from population growth and other factors. Best Available Control Technology for NOx DEP has determined that conversion of the Plant units to fire Orimulsion constitutes a "modification" subject to review under DEP's Prevention of Significant Deterioration (PSD) regulations in Chapter 62-212, F.A.C. For modifications of existing sources, these regulations require a determination of Best Available Control Technology (BACT) for all air pollutants which will experience emission increases in excess of applicable significant emission rates. Rule 62-212.400(1)(f), F.A.C. Because NOx and CO emission increases exceed applicable significant emission rates as a result of the conversion to Orimulsion, BACT is required for those pollutants. DEP rules define "Best Available Control Technology" or "BACT" as: An emissions limitation, including a visible emission standard, based on the maximum degree of reduction of each pollutant emitted which the Department, on a case by case basis, taking into account energy, environmental, and economic impacts, and other costs, deter- mines is achievable through application of pro- duction processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant. Rule 62-212.200(16), F.A.C. In determining BACT, DEP must give consideration to prior BACT determinations of the U.S. Environmental Protection Agency (EPA) and any other state, all available scientific and technical material and information, and the social and economic impacts of application of such technology. Rule 62-212.410(1), F.A.C. DEP has no rule on making BACT determinations. In making BACT determinations, DEP attempts to follow EPA guidelines. Unfortunately, EPA also has not promulgated the guidelines as rules; they consist of a 1990 draft entitled EPA New Source Review Manual. To make matters worse, one reason why the EPA draft guidelines have not been adopted as rules may be that they are so complicated and confusing. It was noted by one expert practitioner in the field that it is with good reason that the design of the cover of the EPA draft guidelines is a jigsaw puzzle and, notwithstanding their official title, practitioners commonly refer to the guidelines as "the puzzle book." In accordance with EPA requirements, DEP currently uses a "top down" approach in determining BACT. Under the "top down" approach, alternative control technologies are ranked in terms of stringency. An emission limit reflecting the most stringent control alternative generally is selected as BACT unless rejected as technically or economically infeasible. Under the "top down" BACT approach, the most stringent NOx emission limit for sources similar to the Plant units is 0.17 lbs/mmBtu (pounds per million British thermal units) of heat input, using selective catalytic reduction (SCR) and combustion controls. SCR involves the injection of ammonia into the flue gas in the presence of a catalyst. The ammonia reacts with NOx on the surface of the catalyst, thereby transforming NOx into nitrogen and water. The SCR is not entirely selective; it also results in undesired reactions, including the conversion of SO2 to SO3 and the creation of ammonium sulfate and bisulfate. SCR systems require a flue gas temperature in the range of 600 to 750 degrees (F) which for some applications can be achieved between the boiler and the air preheater upstream of the ESP and FGD system. This configuration is referred to as a "front-end" SCR system. With fuels such as Orimulsion and high sulfur fuel oil which contain relatively high amounts of sulfur and vanadium, however, a front-end SCR can lead to significant problems because the vanadium in the fuel deposits on the SCR catalyst and results in an ever-increasing SO2 to SO3 conversion rate. Despite an extensive research program conducted jointly by European and American corporations involved in SCR manufacture, design, and operation, there are no available means of avoiding the ever-increasing SO2 to SO3 conversion rate when a front-end SCR is used with high-sulfur and high-vanadium fuels on utility units operated at base-load (i.e., operated continuously). Excessive SO3 created by a front-end SCR can plug the air preheater, which is a large piece of equipment approximately 45 feet in diameter. In addition, the SO3 condenses into sulfuric acid which corrodes the air preheater and ESP. There are no available means of protecting the air preheater from the excessive SO3 created by a front-end SCR system. Additional ammonia can be injected after the air preheater to neutralize the increased SO3 and thereby protect the ESP. However, additional ammonia injection causes more operational problems including ammonia slip, which can contaminate the water in the FGD and partially leave the stack as an emission, as well as an additional ash stream which would result in either higher particulate emissions or the need for a larger ESP. For these reasons, a front-end SCR system is technically infeasible for the converted Plant units, which are expected to operate base-loaded while firing Orimulsion. There was some testimony that a front-end SCR has been used on a unit which apparently has fired Orimulsion in Japan for approximately one year. However, that was a small peaking unit that could be shut down for maintenance when needed. In contrast, FPL's plans for the converted Manatee Plant units is to operate them as base-loaded units. Unlike peaking units which operate sporadically, base-loaded units operate continuously and are not out of service enough to allow for the performance of the additional maintenance required for a front-end SCR system. For that reason, a front-end SCR is not technically feasible for base-loaded units firing Orimulsion. Under a "back-end" design in which the SCR system is located downstream of the air preheater, ESP and FGD, the operational problems associated with the front-end system are avoided because the ESP removes vanadium, and the FGD removes sulfur from the flue gas. However, there are significant energy, environmental, and economic disadvantages to a back-end system. A back-end system would require installation of additional fans to overcome significant pressure loss and either duct burners or steam heat exchangers to reheat the flue gas to achieve the temperature necessary for the catalytic reaction. Approximately 6.72 percent of the energy generated by the boilers would have to be used to power this additional equipment--the approximate equivalent of the electrical use of 30,000 homes. In addition to higher energy consumption, a back-end system would result in secondary emissions from the burning of additional fuel and increased capital and operating costs. The EPA guidelines seem to say that both average and incremental cost effectiveness should be used to evaluate particular control options. Average cost compares the total amount of pollutant reduction from a combination of technologies to the cost of those technologies. Incremental cost effectiveness assesses the cost of adding a technology to emissions already controlled to some extent by other technologies. Of the two analyses, DEP believes that incremental cost effectiveness is the better accepted engineering practice, and there is a larger incremental cost database that can be used for making project-to-project comparisons. For these reasons, DEP relies more on the incremental cost effectiveness analysis. In prior BACT determinations for NOx emissions, DEP has viewed incremental costs in the range of $4,000 per ton of NOx removed as economically viable. By comparison, DEP has considered incremental costs in the range of $5,000 per ton of NOx removed to be unacceptable in determining BACT for NOx. The total capital costs of a back-end SCR system are on the order of $80 million to $100 million per unit. When capital costs are considered with operational costs and annualized over time, the total per-unit cost of a back-end SCR system ranges from $27 to 29 million per year. Unlike SCR, which reduces NOx that has already formed in the boiler, low-NOx burners minimize the formation of NOx by reducing the temperature and amount of time that nitrogen and oxygen have to react in the boiler. For the converted Plant units, low-NOx burners are capable of achieving a NOx emission rate of 0.27 lbs/mmBtu or lower at a total capital cost of approximately $5 million per unit. Operating costs are low, and the incremental cost effectiveness of low NOx burners used to achieve a .27 lbs/mmBtu emissions rate is only about $670 per ton removed. When compared to use of low-NOx burners at a 0.27 lbs/mmBtu NOx emissions rate, the incremental cost of adding a back-end SCR to achieve a 0.17 lbs/mmBtu rate is in the range of $8,000 to $9,000 per ton of NOx removed, which is well in excess of costs previously found to be too high in prior BACT determinations. Shortly before the start of the final hearing, FPL agreed to add reburn, another combustion control technology, on one unit as a test to ascertain if it could further reduce NOx emissions during the generating process; if so, FPL agreed to add the technology to the other unit as well. However, FPL still maintained that the BACT emissions limit should be set at .27 lbs/mmBtu. By the end of the hearing, a stipulation was entered into among FPL, DEP, EPC and Pinellas County that reburn technology also will be installed on both units to achieve a NOx emissions limit of no greater than 0.23 lbs/mmBtu (30-day rolling average) while firing Orimulsion. In addition, it was stipulated by those parties that DEP may modify the NOx emissions limit if it is determined that a rate lower than 0.23 lbs/mmBtu can be practicably and consistently achieved based upon the results of a six-month test program to be developed by a NOx Emissions Reduction Team consisting of representatives from FPL, the low- NOx burner supplier, FPL's reburn technology consultant, DEP, Pinellas County, Manatee County and EPC. The evidence was somewhat confusing as to the capital and operating costs of the reburn technology. It appears that the capital cost would be approximately an additional $8 million per unit, making the total capital cost of the combination of low NOx burners and the reburn technology approximately $13 million per unit. The evidence did not specify the operating costs. However, the evidence was that incremental evaluation of the addition of back-end SCR using the lower .23 lbs/mmBtu emissions limit would result in SCR being even less cost-effective--more on the order of $15,000 per ton of NOx removed. There is some indication that, while BACT emission limits for SCR systems have been set at .17 lbs/mmBtu, the technology actually might be capable of achieving emission reductions on the order of .10 lbs/mmBtu. If the lower emissions rate is assumed, SCR would look more cost effective. However, no calculations were made based on the lower emissions rate, and there was no competent evidence on which a finding could be made that, for purposes of determining BACT, the cost-effectiveness of back-end SCR should be assessed based on the lower emissions limit. The evidence was that the .10 lbs/mmBtu was a design emissions rate for certain SCR equipment; the evidence called into question the ability of SCR to achieve a continuous emission rate of .10 lbs/mmBtu. Although DEP has declined to give much weight to consideration of the average cost of NOx removal, some evidence was introduced at hearing on the average cost of reducing NOx emissions at the converted Manatee Plant using a combination of low NOx burners and back-end SCR. Under an average cost effectiveness analysis, the emissions limit determined to be achievable by a combination of control technologies is compared to what EPA calls the "realistic upper bound" uncontrolled emissions rate. Using an "upper bound" emissions rate of .58 lbs/mmBtu, and an emissions limit of .17 lbs/mmBtu, one witness found the average cost of reducing NOx emissions at the converted Manatee Plant using a combination of low NOx burners and back-end SCR to be on the order of just $2,000 per ton removed. But the use of .58 lbs/mmBtu as the "upper bound" number was based on incomplete and to some extent inaccurate information. FPL and DEP presented evidence that the actual average cost per ton of NOx removed is more on the order of $4,300. These analyses used .395 (or .4) lbs/mmBtu as the "upper bound" starting point. This starting point was based on more complete and more accurate information, but there seems to be room for argument as to the most suitable starting point. There also was evidence of an earlier FPL calculation that average cost per ton of NOx removed is approximately $2,900. However, the evidence was not clear as to the assumptions used in this calculation. Although DEP has declined to give much weight to consideration of the average cost of NOx removal, there was some indication that other states do. Pennsylvania was said to use average cost of $4,000 per ton of NOx removed as a benchmark for determining the economic feasibility of BACT emissions limits, and Wisconsin was said to use $6,000. However, the evidence was not clear as to how those states make BACT determinations for NOx emissions. In light of the excessive incremental costs of SCR for the converted Plant units, imposition of SCR is not warranted. Although concerns have been raised about the potential effect of NOx emissions on ozone levels and nitrogen deposition in the Tampa Bay area, as discussed infra, NOx emissions from the converted Plant units are not expected to have a significant impact on either ozone levels or water quality. Moreover, the evidence was not clear that such environmental impacts would be significantly different whether or not SCR is installed on the converted Plant units. Based upon a case-by-case consideration of the energy, environmental, economic, and other factors discussed above, a NOx emission rate of 0.23 lbs/mmBtu based upon use of low-NOx burners and reburn technology constitutes BACT for the converted Plant units when firing Orimulsion. For CO emissions from the converted Plant units, BACT is an emissions limit of 0.325 lbs/mmBtu based upon use of combustion controls. Other than combustion controls, there are no feasible means of controlling CO emissions from fossil fuel- fired steam electric generating units. Air Quality Impact Analysis Ambient air quality impact analyses demonstrate that emissions resulting from maximum operation of the converted Plant will comply with applicable ambient air quality standards and PSD increments for CO and NO2. Because the NO2 analyses were based upon a NOx emissions rate of 0.3 lbs/mmBtu, actual impacts on ambient NO2 concentrations are expected to be lower in light of the subsequently agreed-upon NOx emissions rate of 0.23 lbs/mmBtu. Although ambient impact analyses are not required for SO2 and PM because emissions will be below significant emission rates, FPL also performed air dispersion modeling demonstrating compliance with ambient air quality standards for those pollutants. Additional impact analyses demonstrate that projected emissions of SO2, NOx, and CO will have no adverse impact on soils, vegetation, wildlife, or visibility in the vicinity of the Plant. Likewise, the results of air dispersion modeling demonstrate that projected emissions will not adversely impact air quality related values (AQRVs), such as vegetation, soils, wildlife, and visibility, in the Chassahowitzka National Wilderness Area which is the PSD Class I area closest to the Plant. Effect of Proposed NOx Emissions on Ozone Levels Ambient air quality analyses for ozone typically are not required for sources, such as the Plant, which are located in areas that are in attainment of the ozone standard. However, because the Plant is located within a mile of the Hillsborough County/Manatee County line, and not far from Pinellas County, and because Hillsborough County and Pinellas County are in the process of being redesignated from nonattainment to attainment for ozone, concerns have been raised regarding the potential effect of proposed NOx emissions on ozone levels. Ozone formation is a complex process involving precursor pollutants such as NOx and VOCs (volatile organic compounds). There is no direct relationship between increased NOx or VOC emissions and increased ozone levels. Depending upon conditions in the particular area in question, NOx reductions may or may not benefit ambient ozone levels. The impact of a NOx emissions point source, such as the Manatee Plant, on ozone levels is difficult to predict. There are no EPA-recommended models to analyze the effect of NOx emissions from a particular source on ozone concentrations, but other models and tools that are available can be used to try to assess whether a particular source may have a significant impact on ozone formation in a particular urban area. FPL used the models suggested by DEP. To assess the impact of projected NOx emissions on ozone formation, FPL first utilized the Empirical Kinetics Modeling Approach (EKMA), which DEP used in support of the ozone redesignation request submitted to EPA for the Tampa Bay area. The EKMA model is not a dispersion model designed for use in predicting ozone impact of a NOx emissions point source, such as the Manatee Plant. It essentially evenly distributes NOx and VOC's within a certain volume of air, such as the air over the Hillsborough/Pinellas nonattainment zone, and models the totality of what occurs within the airshed. It also does not account for either other additions from outside the zone being modeled or components of the air mass leaving the zone being modeled. FPL essentially adjusted the model by adding the NOx emissions from the converted Manatee Plant. It is a relatively crude model used primarily for screening purposes. Because of the difficulty in predicting the impact of the converted Manatee Plant, and the limitations of the EKMA model, DEP requested that FPL also use the Reactive Plume Model (RPM) to further assess the effect of the projected emissions on ozone concentrations in Hillsborough and Pinellas counties. The RPM model also has its limitations and is not approved by the EPA for predicting ozone concentrations resulting from a point source. The RPM models ozone precursor reactions resulting from the point source being studied that occur within the plume. It is clear that, as a result of the complex nature of the ozone precursor reactions, significant ozone formation also will occur "off-plume." RPM attempts to account for this ozone formation as well. In any event, it is not clear how "off-plume" reactions would be affected by the point source being evaluated. Like the EKMA model, the RPM model used by FPL also did not account for either additions from outside the zone being modeled or components of the air mass leaving the zone being modeled. FPL did not attempt to predict future additional sources of ozone precursors and run either the EKMA model or the RPM model assuming impacts from those additional sources. The evidence was that this exercise would have been difficult if not impossible to undertake. It is not clear whether, with new air pollution regulations, NOx levels will increase or decrease, and it is difficult to predict where new source will originate. (The same probably could be said for VOC's.) For these reasons, such an exercise, if undertaken, would have been of questionable predictive value. Despite its limitations, the RPM model does provide additional useful information in attempting to assess the impact of the converted Manatee Plant on ozone formation, and it is the only other reasonably available tool. Better models or "observation-based approaches" that might be effective for purposes of point source permitting have not been developed yet. An Urban Air Shed Model (UASM) would provide useful additional information, but UASM's are extremely complex and typically are conducted by a consortium of governments and universities for entire metropolitan areas. UASM's take years to complete and cost hundreds of thousands of dollars. It is not reasonable to require FPL to finance and conduct such a study in this case. Although there are limitations to the EKMA and RPM models, FPL has done more to analyze potential impacts of NOx emissions, using the reasonably available tools, than any other applicant in the history of Florida's air permitting program. The EKMA and RPM modeling indicate that NOx emissions from the converted Plant will not have a significant impact on ozone levels in the Tampa Bay area. Based on these modeling analyses, FPL has provided reasonable assurances that the Project will not cause or contribute to a violation of the ozone standard. By notice published in the Federal Register on December 7, 1995, EPA proposed to redesignate the Hillsborough/Pinellas county area as attainment for ozone. Under the proposal, EPA would approve the redesignation request and maintenance plan jointly submitted by DEP, Pinellas County, and Hillsborough County. The Orimulsion Conversion Project itself will not trigger any specific action under the maintenance plan because the Manatee Plant is located outside of Hillsborough and Pinellas counties. There are two "triggers" for a response under the maintenance plan. The first would be a violation of the ozone ambient air quality standards in the two-county area, i.e., the fourth maximum daily value greater than .12 parts per million (ppm). The only recorded exceedances since 1990 occurred on June 10, 1995. The second "trigger" has two conditions: the first is an increase in the inventory of NOx or VOC emissions in the inventory update years 1994, 1997 or 2000 exceeding 5 percent over the levels recorded in 1990, a year in which there were no ozone violations; the second would be the a design value for the update year of greater than .114 ppm (compared to the ambient air standard of .12 ppm). While the 1994 inventory of NOx emissions was between 7 and 8 percent over the 1990 inventory, no maximum concentrations over the "design value" have been recorded. (The 1995 inventory was not available at the time of the hearing.) Recognizing the limitations of the EKMA and RPM modeling, it nonetheless is not expected that emissions from the Project will trigger any action under the maintenance plan. If an ozone violation or other specific contingencies occur in the future, however, the maintenance plan would require the state to undertake rulemaking to implement corrective action. Such corrective action could include imposition of Reasonably Available Control Technology (RACT) for existing sources of NOx in the region and expansion of NOx and/or VOC control strategies to adjacent counties. FPL also has agreed to further minimize NOx emissions during the "ozone season," which generally lasts from May 15 through September 15. Under the stipulation between FPL, DEP, EPC and Pinellas County, daily NOx emissions from the Plant shall not exceed 42.23 tons during the ozone season when Orimulsion is fired. This daily cap is more restrictive than a 30-day rolling average. As incentive to further reduce NOx emissions, FPL will pay annually, to a trust fund jointly administered by Manatee, Pinellas, and Hillsborough Counties to benefit air quality in the region, $200 per ton of NOx emitted from both Plant units, on a daily basis, in excess of 38.6 tons per day during the ozone season. Effect of Proposed NOx Emissions on Water Quality The Plant is located within the watershed of Tampa Bay, a large estuary comprised of four major segments including Old Tampa Bay, Hillsborough Bay, Middle Tampa Bay, and Lower Tampa Bay, and other embayments including Cockroach Bay and Little Cockroach Bay in the Cockroach Bay Aquatic Preserve, which is designated as an Outstanding Florida Water (OFW). The Little Manatee River, another OFW, also is part of the Tampa Bay watershed. Because Tampa Bay is located in a phosphate-rich area, phosphorus levels in the bay are extremely high. Due to high phosphorus levels, nitrogen is considered the limiting nutrient in Tampa Bay. Major sources of nitrogen to Tampa Bay include nonpoint runoff (i.e., materials that run off the land surface and are carried through riverine systems into the bay), atmospheric deposition both on the surface of the bay and within the watershed, point sources (e.g., discharges from wastewater treatment systems and industrial facilities), and internal sources within the bay itself. Although there are ongoing studies, including the Tampa Bay Atmospheric Deposition Study, to better quantify actual deposition in the Tampa Bay area, available analyses indicate that atmospheric deposition is an important source of nitrogen loading to Tampa Bay. The water quality of Tampa Bay varies from "good" in Lower Tampa Bay to "fair" in portions of Hillsborough Bay which historically have had water quality problems such as high levels of chlorophyll a. The water quality of Cockroach Bay reflects the water quality in adjacent Middle Tampa Bay, which has been characterized as "poor" during certain times of the year due to relatively high chlorophyll a levels. Due to nutrient inputs and other factors such as dredge and fill activities, prop-scarring from motor boats, and other physical activities, portions of Tampa Bay, including Cockroach Bay, have experienced significant losses in historical seagrass coverage. In recent years, however, seagrass coverage has increased in Tampa Bay overall. Lake Manatee is another water body of potential concern located near the Plant within the Tampa Bay watershed. Lake Manatee is a man-made lake which supplies drinking water to Manatee County, Sarasota County, and various municipalities. Based upon its trophic state index of 50 to 60 for the past few years, Lake Manatee has water quality in the upper end of the "good" range. However, Manatee County treats Lake Manatee with copper sulfate to prevent blooms of blue-green algae which can create taste and odor problems in the water. Studies have determined that nitrogen is the limiting nutrient of Lake Manatee and that nitrogen levels have increased. Due to high color levels and other factors, however, Lake Manatee appears to be a dystrophic system in which primary nutrients, such as phosphorus and nitrogen, are not responsible for most of the plant growth. In fact, the most recent study of Lake Manatee water quality indicates that algal growth there has a stronger correlation to temperature and specific conductance than to total nitrogen. In addition, the blue-green algae associated with taste and odor problems in lake water have the ability to "fix" nitrogen from the atmosphere and, therefore, have a competitive advantage over other algae in the absence of external nitrogen inputs. To assess potential impacts of the Project on water quality in the Tampa Bay area, the effect of proposed NOx emissions on nitrogen deposition in the Tampa Bay watershed was calculated using the best tools reasonably available. Assuming a NOx emissions rate of 0.23 lbs/mmBtu following the conversion to Orimulsion as proposed with the stipulated conditions of certification, the Plant's contribution will be 1.25 percent of the total nitrogen deposition in the watershed. Based upon consideration of background deposition in more pristine locations in Florida and local deposition within the Tampa Bay area, as well as a comparison of current and projected emissions from the Plant with regional NOx emissions, NOx emissions from the converted Plant will result in a less than 0.8 percent increase in nitrogen deposition throughout the Tampa Bay watershed. Additionally, the estimated increase in nitrogen deposition was apportioned among the various segments of the watershed based upon the results of dispersion modeling. Atmospheric nitrogen can reach Tampa Bay and other water bodies through direct deposition on the water surface as well as "indirect deposition" and subsequent runoff from land surfaces within the various segments of the watershed. Due to soil absorption and plant uptake, however, not all atmospheric nitrogen deposited within the watershed ultimately reaches Tampa Bay. Using the Project's calculated impact on nitrogen deposition and conservative runoff coefficients for the "indirect deposition" component, nitrogen loading budgets were calculated for Tampa Bay and its various segments, as well as Lake Manatee. Existing nitrogen loadings are on the order of 3,000 metric tpy for Tampa Bay and 300 metric tpy for Lake Manatee. In comparison, the increase in nitrogen loadings attributable to the Project is on the order of 21 metric tpy (or 0.69 percent) for Tampa Bay and 1.2 metric tpy (or 0.39 percent) for Lake Manatee. In light of the existing loading to these systems, the predicted increases attributable to the Project are insignificant. Because these loading analyses are based upon a NOx emissions rate of 0.27 lbs/mmBtu, actual impacts on nitrogen loading are expected to be less in light of the lower 0.23 lbs/mmBtu emissions rate subsequently agreed upon in the stipulation between FPL, DEP, Pinellas County and EPC. Although nitrogen within the water column will deposit in the sediments, increased nitrogen loadings will not have an extended cumulative effect over time because the amount of nitrogen available to the system ultimately reaches equilibrium as a result of a continual burial process. Additionally, other processes, such as denitrification, decrease the amount of nitrogen in the sediments. Accordingly, marginal increases in atmospheric deposition of nitrogen have only marginal effects on sedimentary nitrogen concentrations and internal loadings. To assess the Project's impact on biological activity in surface waters in the vicinity of the Plant, laboratory tests were performed on water samples collected within the Lower Tampa Bay, Lake Manatee, Cockroach Bay, the Little Manatee River, the Manatee River, and Lake Manatee utilizing the algal assay procedure (AAP). AAP is a procedure developed and recommended by EPA to determine the effect of increased nitrogen loadings on algal growth within receiving marine or freshwater systems. Under the AAP, water samples taken from the field are spiked with varying levels of nitrogen as well as algae with a given growth potential. After the spiked samples are set aside for five to seven days, algal growth is measured and comparisons between the spiked and control samples are made to determine the effect of the nitrogen additions. In each of the AAPs performed, no statistically significant increase in algal growth was noted with nitrogen additions up to 10 times the amount anticipated from the Project. FPL provided reasonable assurances that nitrogen loadings attributable to the converted Plant will not have a significant adverse impact on water quality or biological activity in any marine, estuarine, or aquatic systems in the Tampa Bay area. The evidence indicates that the impact is likely to be so small that it will be difficult to measure and distinguish from natural fluctuation in nitrogen levels. For the same reason, FPL has provided reasonable assurances that, when considered in conjunction with nitrogen loadings of the same order from other NOx emission sources which have been permitted but have not begun operation in the Tampa Bay area, the Project will not cause or contribute to an imbalance in natural populations of aquatic flora and fauna or a dominance of nuisance species in Tampa Bay, including Cockroach Bay. Likewise, because nitrogen loadings from the Plant are not expected to have a significant adverse impact on algal growth, such loadings are not expected to impact other flora, other trophic levels, such as seagrasses or fisheries production, or transparency levels in Tampa Bay. In their case, Manasota-88 and MCSOBA presented two expert witnesses who generally opined that 20 tons of additional nitrogen would be detrimental to Tampa Bay, would cause an imbalance of aquatic flora and fauna in violation of DEP's nutrient rule, as well as violations of DEP's transparency and nuisance rules, and that nitrogen loading to Tampa Bay has the potential to be a cumulative problem. The expert witnesses presented by Manasota-88 and MCSOBA did not perform or make reference to any studies or other analyses that contradict the analyses performed by FPL's expert witnesses related to nitrogen deposition impacts. Theirs was more of a qualitative evaluation. Clearly, seagrass coverage in Tampa Bay and Cockroach Bay has declined due in large part to shading from algal growth resulting from nitrogen. It follows logically, in their opinion, that adding 21 tons of nitrogen a year to current and future levels cannot help, but can only hurt, even if the impact is too small to measure. They urge that DEP should prohibit any increases in nitrogen loading to Tampa Bay, in accordance with the recommendations resulting from the federally-funded National Estuaries Program (NEP) study of Tampa Bay, including any increases from atmospheric deposition. Regulatory links between air emissions and water quality criteria are developing through the policy of management. But DEP historically has not regulated atmospheric deposition of nitrogen to surface waters, and ecosystem management has not yet matured to the point where DEP is ready to begin regulating atmospheric deposition of nitrogen as a surface water discharge subject to surface water quality permit review. If it does, it is possible that some recommendations of the NEP Tampa Bay study on nitrogen loading to Tampa Bay could be achieved through new surface water quality permit review of nitrogen loading through atmospheric deposition. Such regulation may result higher power generating costs from stricter NOx emissions limits, but it may be determined that those costs would be lower than the costs of trying to rehabilitate water bodies after nitrogen has been deposited and loaded into them. In the absence of such regulation, however, FPL nonetheless has provided reasonable assurances that nitrogen deposition resulting from NOx emissions from the converted Plant will not have any meaningful or measurable impact on water quality, biological activity, or transparency in any marine, estuarine, or aquatic system in the Tampa Bay area. Human Health Risks Associated with Proposed Air Emissions Despite increased plant utilization, there will be no increase in either short term or annual emissions of any hazardous air pollutants (HAPs) or other "air toxics" as a result of the conversion to Orimulsion. To assess potential health- related impacts of Project emissions, air dispersion modeling was conducted to predict ambient concentrations of HAPs and other air toxics. The predicted ambient concentrations for all HAPs and air toxics except vanadium are below ambient reference concentrations (ARCs), which are conservative screening values established for various air toxics in DEP guidelines. Predicted concentrations of vanadium exceed the ARC for the 24-hour averaging period at the maximum point of impact within the plant site, but the exceedance is very small (i.e., at the third decimal place), and the ARC is between 100 and 1000 times lower than any exposure level shown to cause effects in humans. Moreover, vanadium is not bioaccumulative and does not have any interactive effect with other substances. Accordingly, the proposed level of vanadium emissions does not pose a significant threat to human health. Although there is no regulatory requirement for a formal risk assessment, a multi-pathway risk assessment was performed to evaluate potential human health impacts of air emissions from the converted Plant. Whereas the ARCs established by DEP address only the inhalation pathway of exposure, the multi-pathway risk assessment considered the cumulative effect of oral and dermal exposure in addition to inhalation exposure to all pollutants emitted from the converted Plant. Utilizing conservative assumptions, the multi- pathway risk assessment analyzed potential exposures to residential and occupational populations, including potentially sensitive populations such as children and persons who live and work near the Plant. Based upon the results of the multi-pathway risk assessment and other analyses, the health risks from operation of the Plant while firing either oil or Orimulsion are negligible. Compared to historical operation with No. 6 fuel oil, future operations following conversion to Orimulsion would provide a benefit from a toxicological and risk assessment standpoint. Plant Water Supply and Use Water Supply FPL is currently withdrawing water from the Little Manatee River under a valid Permit Agreement entered with the SWFWMD in 1973 and amended in 1975. As part of the Project, FPL will significantly reduce the amount of water it is allowed to withdraw from the Little Manatee River. Maximum allowed withdrawals for the 16-year period 1978-1993 could have been up to an average of 28.4 million gallons per day (MGD) under the Permit Agreement. By way of comparison, if the stipulated Conditions of Certification had been in effect during the same 16-year period, withdrawals would have been approximately 9.4 MGD (average) if FPL had used the full 10 percent maximum allowable withdrawals. Following the conversion to Orimulsion, the Plant will have similar requirements for cooling and process water but at increased quantities over historical levels of use. The existing Permit Agreement between FPL and the SWFWMD would allow FPL to obtain sufficient water for all its Project needs under its currently authorized withdrawals from the Little Manatee River. Rather than obtaining all the needed water from the Little Manatee River, however, the additional 9.5 MGD of water needed for the Project above historical levels will be supplied through the use of 5 million gallons per day of reclaimed water from local wastewater treatment facilities, or equivalent sources of water, and 4.36 MGD of groundwater from existing permitted sources. The order of priority for meeting the Plant's water needs following conversion to Orimulsion will be: (1) 5 MGD of reclaimed treated wastewater delivered to the cooling pond; (2) existing permitted groundwater withdrawals of 4.36 MGD for use in either the cooling pond or directly in the plant's process water systems; and (3) the use of withdrawals from the Little Manatee River, up to 10 percent of the daily flow, to meet the remaining water needs of the plant. Predicted diversions from the Little Manatee River would average approximately 8.3 MGD. This is approximately the same as historical diversions from the River since 1974 (including the "big gulp" to fill the cooling pond initially), compared to the approximately 6.4 MGD withdrawn during the 16-year period 1978-1993. The stipulated Conditions of Certification provide for reclaimed water to be used following conversion to Orimulsion will be treated wastewater supplied by the Manatee Agricultural Reuse Supply (MARS) system or other reclaimed water source. (At the time of the final hearing, negotiation of the terms of FPL's use of MARS reuse water had not yet been completed.) FPL will be able to take this treated wastewater during periods of time when farmers will not need such water for agricultural uses. Thus, deliveries to FPL could range between 2 MGD and 14 MGD. FPL's use of reclaimed water from MARS would allow the County to expand that program by providing a baseload amount of water to be taken by FPL from that system. This would allow Manatee County to avoid having to build other storage facilities for treated wastewater. FPL will install three new groundwater wells west of the cooling pond to obtain 4.36 million gallons per day of groundwater from the Floridan aquifer for use in the Plant following conversion to Orimulsion. These new wells will be constructed to meet current SWFWMD well construction standards and replace older wells that do not meet current standards. The new wells would lessen the existing impacts on the upper aquifers by preventing the exchange of contaminants between the aquifers. This quantity of water represents amounts already permitted for use both at the Plant site for plant use and on-site agricultural operations and at adjacent agricultural operations. An additional 2.7 MGD of reclaimed water will be supplied to the adjacent agricultural operations to replace the existing, permitted, off-site groundwater withdrawals that are being transferred to FPL's use. Withdrawals from the Little Manatee River will be made using the computerized withdrawal system operated by FPL under a diversion schedule that allows increased withdrawals as river flow increases. This system is controlled by using river stage height as an indicator of river flow rate. This system allows FPL to respond quickly to changes in river elevation when making withdrawals. This system will be reprogrammed to the new diversion curves to prevent withdrawals above 10 percent of the river flow on a daily basis. Withdrawals from the Little Manatee River under the proposed Conditions of Certification would not occur when the flow in the Little Manatee River is below 40 cubic feet per second (cfs). Forty (40) cfs is the minimum flow level established by the SWFWMD to protect the ecology of the Little Manatee River. The pumps can withdraw no more than 190 cfs. If the water level in the cooling pond falls below 62 feet above mean sea level (msl), FPL is authorized by the proposed Conditions of Certification to request approval from SWFWMD to increase withdrawals above 10 percent of stream flow from the Little Manatee River to restore the pond water level to 63 feet above msl. Such withdrawals would be made in accordance with three "emergency diversion curves" that limit withdrawals from the River on a seasonal basis with higher withdrawals during the wet season. The three sources of water to be used by the Plant following conversion to Orimulsion represent the lowest overall quality of water suitable for operation of the Plant. Withdrawals of groundwater and surface water from the Little Manatee River are regulated by Chapter 373, F.S., and Chapter 40D-2, F.A.C. The proposed withdrawals do not interfere with existing legal users, are reasonable-beneficial uses, are in the public interest, and otherwise comply with all applicable requirements of those chapters. Cooling Pond FPL performed analyses of the cooling pond's thermal performance and predictions of future water quality in the cooling pond, following conversion to Orimulsion and increased utilization of the Plant. A computer-based energy balance model demonstrated that the pond would operate within the desired temperature limits, and maximum water levels. Water quality in the cooling pond following 20 years of operation was also predicted using several computer models. Water quality concentrations after 20 years were predicted with a mass balance model simulating various water inflows to the pond and evaporation rates from the pond. These results were then evaluated using a metal speciation model called MINTEQ which predicted precipitation of various chemical constituents and predicted final water quality in the pond. These results were used to evaluate impacts to groundwaters. Currently, the Plant site has three existing, permitted surface water discharges to the Little Manatee River: cooling pond discharges resulting from excessive rain events; discharges which occur during spillway gate tests performed as part of FPL's cooling pond embankment safety program; and (3) overflows which may occur during loss of power or malfunction in the sump pumps in the toe drain system of the pond. Following conversion to Orimulsion, several of these permitted discharges to the Little Manatee River will be eliminated. First, the cooling pond will be operated to contain significant rain events up to a 100-year/24-hour storm event. To accomplish this, the cooling pond level will be maintained at a lower elevation below the spillway crest to allow sufficient freeboard to hold such a storm. While FPL will continue to conduct annual spillway gate tests as part of its safety program for the cooling pond, the gate tests will be conducted in a manner to insure that there will be no discharges to the Little Manatee River. New power sources will be provided to the sump pumps in the toe drain system to increase the reliability of power and to minimize overflows from those sumps. Impacts of Groundwater Withdrawals and Discharges The Project may result in impacts to groundwater resources as a result of discharges from the cooling pond and from groundwater withdrawals. FPL evaluated the potential impacts of these activities on groundwater levels and quality. To serve the Project, FPL proposes to install three new groundwater wells to replace existing permitted wells that serve adjacent agricultural operations. The 4.36 MGD of authorized withdrawals from the existing agricultural wells will be reallocated to the new FPL wells, and the agricultural water use will be met using treated wastewater. FPL conducted modeling of the withdrawals from the three proposed wells to identify the drawdown of groundwater levels in the area. FPL utilized a computer model known as MODFLO to evaluate withdrawals for a period of 20 years. Water levels in the three aquifers underlying the Plant site and in nearby existing wells will not be significantly impacted by the relocation of the withdrawals, effects on surface water bodies such as wetlands that are in and connected to the surficial aquifer will be insignificant, and the proposed pumping will not cause a drawdown of more than one foot below any wetland at or near the Plant site. Although it is not clear exactly how much of permitted capacity is being withdrawn from the existing wells that would be replaced by the three new wells proposed by FPL, FPL gave reasonable assurances that the net impact of the three replacement wells will be negligible and will not cause movement of the saltwater interface in the area around the Project. Groundwater at the site is classified as G-II groundwater. Based on the water quality modeling of the cooling pond, six constituents present in the cooling pond and in the seepage from the pond in the surficial aquifer would be above FDEP's groundwater standards. Only one of these constituents - sodium - would exceed primary drinking water standards; the other five constituents are all secondary standards. The cooling pond is an "existing installation" for purposes of groundwater discharges under Rule 62-522.200, F.A.C., because FPL had a completed application for a discharge permit on file with DEP as of January 1, 1983, and because the cooling pond was reasonably expected to release contaminants into the groundwater on or before July 1, 1982. Groundwater discharges from the cooling pond and other existing installations must meet primary drinking water standards at the boundary of the zone of discharge (ZOD) and are exempt from meeting secondary groundwater standards. (Rule 62-520.520, F.A.C.) Under Rule 62-520.200(23), F.A.C., ZODs are allowed to provide an "opportunity for the treatment, mixture or dispersion of wastes into groundwaters" both vertically and horizontally under the installation. Under the stipulated Conditions of Certification, the existing cooling pond will have a ZOD "horizontally to FPL's property line, and vertically to the bottom of an aquifer within the Arcadia Formation, the top of which aquifer is not higher than 50 feet below the surficial aquifer, and not lower than the top of the Tampa Member of the Hawthorne Group as defined in [Florida Geological Series] Bulletin No. 59" (which is a point vertically within the confining unit underlying the surficial aquifer and above the intermediate aquifer). The final compliance point for the vertical depth of the ZOD will be determined during the DEP's review of the groundwater monitoring plan submitted following certification. This ZOD represents a vertical expansion of the ZOD granted under current FDEP permits. The current ZOD extends to the base of the surficial aquifer; the expanded ZOD would extend into, but not through, the confining unit below the surficial aquifer. The reason for the expanded ZOD is the change in water quality in the cooling pond resulting from the use of reclaimed water as a source of makeup water for the cooling pond. The expanded ZOD will not extend beyond FPL's property boundaries. ZOD's normally are not set within a confining layer. However, some confining layers contain aquifer units that are large enough for ground water monitoring purposes. Properly located and installed, a groundwater monitoring well tapping a suitable aquifer unit within a confining layer will not constitute a risk of contamination of the underlying aquifer units. FPL analyzed impacts of groundwater discharges from the cooling pond on groundwater in the vicinity of the Plant site laterally and vertically. Based on these evaluations, there will be no exceedance of either primary or secondary groundwater quality standards at the lateral edge of the ZOD at FPL's property line for the 20-year life of the Project. There also will be no violation of groundwater quality standards at the bottom edge of the ZOD. The groundwater discharge will not significantly impair any designated use of receiving groundwater or any surface water nor will it result in a violation of any applicable groundwater standard outside the ZOD. At the edge of the Little Manatee River, there will be no exceedance of either primary or secondary maximum contaminant levels. Discharges to groundwater from the cooling pond will comply with Class G-II groundwater standards and with applicable surface water standards at the edge of the proposed ZOD. The ZODs for other existing on-site facilities, including the solids settling basin, the neutralization basin, and the sanitary drainfield, will extend horizontally to FPL's property line and vertically to the base of the surficial aquifer underlying those facilities. Other sources of potential discharge to groundwater are two former locations of underground fuel tanks, since removed, that are currently in the process of assessment and clean up. The contamination is not migrating and does not represent a threat to groundwater resources at, or beyond the boundaries of, the Plant site. Wetland Impacts and Mitigation Jurisdictional wetlands in the Project area, rail curve construction area and the by- product storage and disposal areas were delineated under a binding jurisdictional declaratory statement issued by the DEP on May 10, 1995. For the total Project, approximately 18.18 acres of State jurisdictional wetlands will be impacted, of which approximately 16.5 are jurisdictional to SWFWMD. Construction at the Plant site, temporary by-product storage area and the rail curve will impact approximately 0.68 acre of jurisdictional wetlands, which are primarily ditches. Construction of the backup by-product disposal area will impact approximately 17.5 acres of mostly highly disturbed, low-quality wetlands located in tomato fields adjacent to the Plant site. The Project has been designed and sited to avoid and minimize wetland impacts. Proposed wetland activities will have minimal adverse ecological or other effects. Using an ecosystems approach to mitigation, FPL has proposed the preservation, enhancement and restoration of a 129.6-acre area located on the northern site boundary. The mitigation area contains seven high-quality upland and wetland ecological communities, including over one-third mile of the Little Manatee River. The mitigation area is located within an extensive corridor of lands considered to have important ecological resource values and targeted by SWFWMD and Hillsborough County for potential acquisition. FPL's activities within the mitigation area will include, among other things, removal of exotic species, planting of native species in disturbed and eroded areas, and protection and management of the site as a wildlife habitat area. Based on a habitat function evaluation, the estimated value of the mitigation area compared to the impacted wetlands is 15 to 1. The proposed mitigation will provide environmental benefits beyond required mitigation and will be more than sufficient to offset all adverse effects caused by the wetland activities. Although the backup by-product disposal area is unlikely to be constructed, the stipulated Conditions of Certification require FPL to provide mitigation for the impacts at that site regardless of whether the backup by-product disposal area is ever constructed. In addition to the 129.6-acre area provided as mitigation for wetland and other impacts, FPL will preserve an environmentally sensitive area near Tampa Bay and 30-foot upland buffers adjacent to the Little Manatee River. FPL has also offered to convey to SWFWMD additional lands along the Little Manatee River within the Save Our Rivers Program area. The Project complies with all applicable requirements for permitting wetlands impacts, including sufficient mitigation for such impacts, provided in Chapters 403 and 373, F.S., and Chapters 62-312, 62-340, and 40D-4, F.A.C. Wetland activities are in compliance with the Manatee County Comprehensive Plan and Land Development Code, so long as the County's recommended variance from strict replacement mitigation required in the Plan and Code is included in the certification. The variance would allow the quality of the existing wetlands and uplands to be enhanced, and there would be assured preservation of wetlands to a greater degree than would normally be required. Creation of wetlands to replace impacted wetlands on strict numerical ratios and exact type-for-type basis may not always be successful. FPL's proposed enhancement and preservation of a large portion of riverine and uplands ecosystem is the preferred approach. Impacts to Flora and Fauna including Listed Species There will be no significant impacts to wildlife or plants, including listed species, from the Project. The mitigation proposed by FPL will more than compensate for any minimal effects on wildlife and plants, including listed species. Extensive ecological surveys were conducted on foot from early 1994 until September 1995 to determine wildlife and plant usage. Ninety percent of FPL's entire property was surveyed and the Project area was surveyed in detail along transects. In addition, scientific literature was reviewed to determine the likelihood of occurrence of species listed by the GFC and the U.S. Fish and Wildlife Service (USFWS). Only one listed wildlife species, the American alligator, which occasionally uses portions of the site, was observed. The alligator is given the lowest protection level, that of species of special concern, by the GFC and is listed as threatened by USFWS because of similarity to another protected species. Given the low habitat value resulting from the agricultural and industrial uses in the Project area, no other listed wildlife species was determined to have a high probability of occurrence. As requested by the GFC, prior to construction FPL will again conduct wildlife surveys for listed species and provide the results to the GFC. Impacts of Water Withdrawals on Little Manatee River and Tampa Bay The Little Manatee River is one of the most studied rivers in Florida, and extensive scientific literature is available on the River. The River is subject to tidal influence and is an estuarine system for approximately 10 miles from its mouth. In addition, the River is very responsive to rainfall and its freshwater flows vary greatly during the year and between years, ranging from very low flow to flows of thousands of cubic feet per second (cfs). This flow pattern results in extreme fluctuations in salinity in the estuary. The flora and fauna of the estuarine zone of the River are well adapted to the fluctuations in flow and salinity. In fact, many saltwater animal species rely on their tolerance to extreme conditions to use the low salinity estuarine habitat of the River, which is rich in food sources and low in predators, as a nursery. The Plant's existing withdrawals from the Little Manatee River have not caused adverse impacts to the ecology of the Little Manatee River or Tampa Bay. SWFWMD permitting requirements contain a presumption that withdrawals of up to 10 percent of daily flow from a stream will not cause unacceptable environmental impacts. See Chapter 40D-2, F.A.C., Part B, Basis of Review for Water Use Permit Applications, 4.2.C.2. FPL and SWFWMD provided unrebutted expert testimony and evidence that the proposed withdrawals of water from the Little Manatee River, including the emergency withdrawals which may exceed 10 percent of flow, will have no adverse impacts on the flora and fauna and water quality of the River and Tampa Bay. Using extensive environmental data collected by SWFWMD and other agencies, salinity in the River was modeled and extensively analyzed for three withdrawal scenarios for the 16- year period, 1978-1993: historical (existing) FPL withdrawals; proposed withdrawals following conversion; and river flows as if no withdrawals had ever taken place. For the three withdrawal scenarios, these analyses included the frequency of occurrence and the duration, of various salinity concentrations for a number of locations along the River. Following the conversion of the Plant to Orimulsion, minimal, temporary changes in salinity will occur only in areas which naturally experience extreme fluctuations in salinity. Because withdrawals will be prohibited when River flow is below 40 cfs, when salinity moves farthest upstream, the withdrawals of freshwater will not cause saltwater to move upstream into areas of the River which have always been fresh. Estuarine organisms thrive within two interrelated habitats: (1) a dynamic salinity- concentration habitat which shifts up- and downstream with tides and freshwater flows; and (2) a static physical habitat containing vegetation preferred by estuarine organisms. Productivity is highest for organisms during periods when their preferred dynamic salinity habitat overlaps their preferred vegetative habitat. Salinity of ten parts per thousand (10 ppt) is generally considered to be a significant boundary of the estuarine low salinity nursery habitat; it includes the part of the river where salinity is sometimes but not always less than 10 ppt. The proposed withdrawals will not affect the location of the dynamic salinity habitat. In fact, salinity areas of less than the 10 ppt salinity boundary of concern will be affected less under the proposed withdrawals than they have been under the historical withdrawals. Static vegetative habitats in the estuarine portions of the Little Manatee River generally fall into three zones comprised of plants whose success depends upon prevailing salinity concentrations. The first, most-saline zone, nearest the River's mouth, is dominated by mangroves. The second zone, which generally comprises the low-salinity nursery, is dominated by juncus (black needlerush) and the third is dominated by tidal freshwater species. Because the durations of salinity concentrations in the River will not be significantly altered by the proposed withdrawals, the boundaries of these static vegetative habitats will not be affected. Modelling and analyses were also undertaken to predict the relationship between salinity and location of maximum population abundance ("AMAX") for four representative fish species found in the Little Manatee River. Results showed that the minimal changes in salinity caused by the proposed withdrawals, including emergency withdrawals, may cause minimal, temporary population shifts but will not result in movement of fishes outside the ranges where they presently commonly occur. Moreover, since the fisheries within the River are not affected, the withdrawals will not affect the productivity of the regional fisheries in the River or Tampa Bay. The Little Manatee River contributes a small fraction (10.7 percent) of total annual freshwater flows into Tampa Bay. These annual average freshwater flows may be reduced by .003 percent by the proposed withdrawals, based on analysis of data for the 20-year period 1973-1993. The proposed withdrawals will have an insignificant effect on freshwater inputs to Tampa Bay. Moreover, any impacts on salinity levels in Tampa Bay from the proposed withdrawals will be limited to the area around the mouth of the River and will not affect biological resources in Cockroach Bay or the rest of Tampa Bay. FPL also analyzed the potential effect on riverine vegetation from any lowering of water levels in the Little Manatee River due to the proposed withdrawals. Vegetation and its water sources and needs were analyzed at representative cross sections of the upper and lower River. Results showed that the proposed withdrawals will have no effect on riverine vegetation due to changes in water levels. Riverine plants in the upper, narrow channelized freshwater portion of the River, where the withdrawals are made, are very tolerant of extremes in water availability, from drought to floods. As an example of the most extreme predicted effect from the proposed withdrawals, the water in the vicinity of the USGA gauging station at U.S. Highway 301 near the Manatee Plant would not reach the lowest river bank level (scarp), on average, five more days during the year (i.e., 91.34 percent of the days in the year) than without any withdrawals (when it would be below the first scarp 89.9 percent of the days in the year), difference of just 1.44 percent. Differences would be only 0.48 percent for the next scarp and even less for the remaining three scarps. This difference in water level would have no effect on riverine plants because they are naturally adapted to endure many weeks of drought. Similarly, there will be no impacts on vegetation in the lower portion of the River. This area is tidally influenced and the cross section analyzed was 700 feet wide compared to the 90-foot-wide channelized upper River cross section. Thus, given the huge volume of water in the lower River, the impact of the proposed withdrawals on water levels in this area would be too small to measure and too insignificant to have any effect on the vegetation. Due to their high tolerance, the estuarine flora and fauna in the River will not be affected by minimal additional fluctuations in salinity and flow. The proposed withdrawals from the Little Manatee River will result in flow and salinity fluctuations which are within existing natural ranges. Potential Impacts of Fuel Spills FPL adopted a three-pronged approach in addressing the potential for Orimulsion spills in Tampa Bay, i.e., spill prevention, spill mitigation, and understanding the ecological effects of any Orimulsion which may be released into the environment. Spill Prevention FPL and Bitor America Corporation, the fuel supplier, have put significant effort into preventing an Orimulsion spill. In the United States, there is presently a risk of a 1,000-barrel or larger fuel spill for every 10,000 port calls. The two major causes of major spills are groundings and collisions. Bitor America Corporation has committed to numerous management practices which constitute safety measures in excess of regulatory requirements to minimize the potential for spills. These additional safety measures include: All vessels and vessel owners used to transport Orimulsion from Venezuela to Port Manatee will be screened using a vetting system to eliminate the possibility of substandard ships and crews being used to transport Orimulsion into Port Manatee. Criteria to be used in screening vessels and vessel owners include limiting vessel age to no more than 10 years, requiring pumps and equipment on board to be specifically designed for Orimulsion, requiring vessels to be classified and crews to be licensed by the best classification societies, ensuring the vessels have in excess of $500 million insurance to cover accidents with a financially capable insurance company (this is in addition to the $250 million insurance Bitor America carries on the fuel for spills), limiting the crew to two languages, and requiring the vessel to have a proven safety record and adequate operational and safety management procedures. All vessels will be required to have double hulls with average compartment sizes no larger than 40,000 barrels. Use of double-hulled vessels will reduce the risk of a spill from a grounding by about 90 percent and from a collision by about 29 percent. Use of compartmentalized vessels will prevent the entire cargo from being released to the environment in the event of a rupture. All vessels will be required to have 20,000 barrels of empty cargo capacity on board. This would allow the transfer of Orimulsion from one compartment to another in case of an accident. Each vessel will have on board a Vessel Information Positioning System (VIPS) for Tampa Bay which will show where the vessel is in relation to other vessels and to the shipping channel during its transit of Tampa Bay. While VIPS is not yet in place, it is expected to be in operation by 1998. VIPS will be funded by users, and Bitor America Corporation has committed to being a user of the system once it is in place. All vessels will be required to maintain a course at least 10 miles off the Florida coast prior to turning into Tampa Bay, rather than the 3-mile clearance required by the U.S. Coast Guard. This requirement will keep vessels away from shallow water, thus reducing the risk of groundings. Prior to turning into the Egmont Key Channel and entering Tampa Bay, the vessels will be required to have at least three miles of visibility. Just west of Egmont Key, the vessel's emergency tow lines will be deployed for use by a tugboat, if necessary. Each vessel's entrance into the channel will be timed so it reaches the Turning Point into the Port Manatee channel at high tide and slack water. This requirement will provide maximum water depth and minimum current influence for the vessel when making the turn from the Tampa Bay channel into the Port Manatee channel. From Mullet Key to Port Manatee, a floating safety zone will be observed for all vessels carrying Orimulsion to the Plant. The floating safety zone, which will be enforced by the U. S. Coast Guard, will prevent other vessels from being within 1,000 yards of the front or rear of the vessel carrying Orimulsion and from being within 200 yards on either side of the vessel. This will effectively make the shipping channel a one- way channel for Orimulsion-carrying vessels. As vessels pass Egmont Key, they will take on two 4,000 horsepower escort tractor-type tugs which will escort the vessel through the channel using the floating safety zone. The U. S. Coast Guard has determined that escort tugs are an effective means of minimizing the chance of a grounding as a result of the vessel's loss of steering or power. At the Turning Point from the Tampa Bay channel to the Port Manatee channel, the vessel will become attached to the escort tugs through its deployed tow lines and will be assisted into the docking area. A weakness of FPL's SCA is that it is not clear to what extent Bitor's commitments are enforceable by the Siting Board. Bitor is not a co-applicant. None of Bitor's commitments are made part of the conditions of certification, and many of them are neither in the SCA nor in the sufficiency responses. To be made enforceable at least against FPL, they should be made part of the conditions of certification. FPL will also exceed regulatory requirements during offloading of Orimulsion by utilizing a secondary hose containment sleeve, or its equivalent, for its offloading hoses to minimize the probability and volume of any spills during offloading at Port Manatee. This secondary containment should effectively contain any Orimulsion that may be released as a result of a leak from connections in the offloading hose or a burst offloading hose. With the management practices to which Bitor America Corporation and FPL have committed for the transport and offloading of Orimulsion, the risk of a 1,000-barrel or larger spill occurring has been reduced to once every 77,000 port calls. Although the number of port calls for fuel delivery to the Plant will approximately double after the conversion to Orimulsion, the risk of a spill occurring in any given year will nevertheless be reduced to about one-fourth the present risk. Spill Mitigation While offloading Orimulsion from vessels at Port Manatee, FPL will comply with all applicable federal, state and local regulatory requirements. For example, FPL will provide booming at the dock on either side of the offloading hose, either in the form of a booming gate system or a deep-skirted boom between the dock and the vessel. The transport of Orimulsion from Venezuela to Port Manatee will also comply with all applicable requirements of the U.S. Oil Pollution Act of 1990 (OPA '90). Bitor America Corporation and its sister company, PDV Marina-Venfleet, have prepared a spill contingency plan which will be used by vessels carrying Orimulsion into Tampa Bay. This plan has been approved by the U. S. Coast Guard. Bitor America Corporation also has adopted a corporate spill response plan which offers technical information on Orimulsion spills to assist its customers or vessel owners in the event of an accident. An atlas of sensitive environments in Tampa Bay has also been assembled by contractors to Bitor America Corporation which identifies strategies for responding to an Orimulsion spill in the area of each sensitive habitat in Tampa Bay. While Bitor America is satisfied with the equipment for responding to Orimulsion spills which it has identified in its spill response plans, it is constantly looking for new equipment. As new equipment is identified and demonstrated to be effective in responding to an Orimulsion spill, Bitor America Corporation will modify its plans to include the new equipment. FPL has three spill response plans which would potentially have application to a spill of Orimulsion -- the FPL Port Manatee Terminal Oil Spill Response Plan, the Manatee Plant Oil Spill Response Plan, and FPL's Corporate Oil Spill Response Plan. Each of these plans has received all necessary regulatory approvals, and FPL could lawfully bring Orimulsion into Port Manatee under the current version of these plans. Nevertheless, FPL will expand its plans to include the recently developed Orimulsion-specific spill response tools and strategies before Orimulsion is delivered to Port Manatee for the Plant. Those updates will be reviewed and approved by the Coast Guard, the U. S. Environmental Protection Agency, and the U. S. Department of Transportation to ensure the revisions meet applicable regulatory requirements. The FPL Port Manatee Terminal Oil Spill Response Plan applies to the offloading hose, the transfer piping from the dock to the terminal, the on-site storage tanks at the terminal, and the transfer and piping system to the Plant. The Manatee Plant Oil Spill Response Plan applies to the on-site storage of fuel at the Plant and the piping to the Plant's boilers. FPL's Corporate Spill Response Plan is supported by a corporate response team that has been established to respond to spills that are beyond the capabilities of the local on-site team. FPL has developed a 2-volume oil spill contingency planning system. Volume 1 consists of the appropriate facility's oil spill response plan, e.g., the plans for the FPL Port Manatee Terminal or the Plant; Volume 2 consists of the corporate response plan. FPL's corporate response team includes approximately 40 positions, typically with two individuals trained for each position at all times. The team members participate in annual training exercises and are on-call 24 hours a day, every day of the year. In the event of a spill, response is directed utilizing a unified command concept, in which decisions to guide response operations are jointly made by the FPL incident commander, the U.S. Coast Guard on-scene coordinator, and the Florida on-scene coordinator. Typically, the U. S. Coast Guard on-scene coordinator is the Captain of the Port, and the Florida on-scene coordinator is the manager for emergency response from the Department of Environmental Protection. The U. S. Coast Guard on-scene coordinator has the authority to take over the spill and direct all response operations if deemed necessary. FPL's spill response methodologies which would be followed in the event of an Orimulsion spill have been successfully employed historically by FPL and the oil industry. In the event of an Orimulsion spill in the Tampa Bay area, FPL should be able to assemble its crews and equipment and begin recovery activities within four hours. This response time is achieved in FPL's annual spill response drills. Orimulsion and No. 6 fuel oil react differently when released in seawater such as that found in Tampa Bay. When No. 6 fuel oil is released in seawater, a very large fraction of the mass almost immediately forms a slick and float to the surface. Underneath the slick, a relatively low fraction of the mass dissolves in the water. By contrast, when Orimulsion is released in seawater, its components disperse in the water column almost immediately. In a shallow, dynamic system such as Tampa Bay, even at low salinity levels, Orimulsion components would be well- mixed throughout the water column. Other processes which affect the fate of Orimulsion and No. 6 fuel oil in seawater such as Tampa Bay include vertical motion (buoyancy), dispersion (both lateral and vertical), dissolution, sedimentation (absorption of fuel particles onto sediments), biodegradation (including chemical and photolytic degradation), entrainment, coalescence and evaporation. All of these processes were incorporated as parameters into a 3- dimensional fates model, known as SIMAP, to predict the movement of Orimulsion and No. 6 fuel oil released in Tampa Bay. SIMAP, which stands for "Spill Impact Mapping," includes a series of 2- and 3- dimensional fates models which evaluate trajectories, transport and weathering of the constituents of spilled fuels. One SIMAP model runs multiple times to provide a probable distribution of fate. SIMAP has been enhanced based on the results of peer- reviewed scientific research to include algorithms for the fates processes affecting the constituents of Orimulsion so that it now has the capability of evaluating the fate of Orimulsion spills. SIMAP is capable of accurately predicting the fate of Orimulsion accidentally spilled in the Tampa Bay environment, including the concentrations of its constituents in 3- dimensional space and time. Several Orimulsion-specific spill response tools and strategies have also been developed and would be used in the event a spill of Orimulsion were ever to occur in Tampa Bay, including Port Manatee. The Ori-Boom, a boom with a 10-foot-deep skirt, has been developed and tested for use in responding to spills of Orimulsion. The 10-foot skirt on Ori-Boom is five layers thick, and includes an outer covering of ballistic material for strength, inner layers of geotextile, and an inner core filter which allows water but not bitumen to pass through. The ability of water, but not bitumen particles, to pass through the skirt of the Ori-Boom has been demonstrated in tests. The Grizzly skimmer has also been developed and tested for use in responding to spills of Orimulsion. The ability of the Grizzly skimmer to remove coalesced bitumen from the surface of the water has been successfully demonstrated. The tests of the capability of the Ori-Boom, the Grizzly skimmer, and other equipment useful in the recovery of Orimulsion were observed by numerous government officials, including representatives of the U. S. Coast Guard and the Florida Department of Environmental Protection. Conventional absorbents, such as oil snares, pom-poms, or filament absorbents, have proven to be very effective in recovery of bitumen particles. These materials are typically used to "polish up" the water by removing fugitive particles after a skimmer, such as the Grizzly skimmer, has removed the bulk of the bitumen. Five thousand feet of Ori-Boom and two Grizzly skimmers will be staged at Port Manatee for use in responding to spills of Orimulsion. Additionally, conventional oil spill equipment which can be used in responding to an Orimulsion spill will be staged at Port Manatee, such as 8,700 feet of conventional 18-inch skirted boom, 200 feet of 36-inch skirted boom, absorbent materials, and 3 shallow-draft boats. FPL also has a stockpile of oil spill response equipment, including approximately 6,100 feet of 36-inch skirted boom, loaded in six semi-trailers in West Palm Beach which can be delivered to any of FPL's facilities. Altogether, FPL has approximately 40,000 feet of conventional skirted boom which could be used to keep bitumen out of the sensitive habitats in Tampa Bay. There is also a stockpile of oil spill response materials at each of FPL's power plants and fuel terminals. Moreover, the Coast Guard, various contractors and cooperatives, and other terminal operators have conventional booms located in the Tampa Bay area which would be effective in responding to an Orimulsion spill in shallow waters. All of the materials staged for use in response to fuel spills is periodically inspected and maintained in good operating condition to ensure its availability in the event of a spill, as required by OPA '90. SIMAP will be incorporated into FPL's spill response plans. In the event Orimulsion is ever spilled in Tampa Bay, the 3-dimensional fates model in SIMAP would be an effective tool to assist in response efforts by predicting the direction and movement of the spill plume. This information would aid the spill response managers in time-critical decisions on where it is most appropriate to deploy a containment boom around the bitumen plume and exclusion boom to protect sensitive habitats. To obtain predictive results quickly for use in developing spill response strategies, the user of SIMAP can control several model parameters, such as the number of Lagrangian particles tracking the various fuel components, the length of the time-step between calculations, and the length of the model run. In a spill event, SIMAP would be run initially using data files on hand which most closely resemble the actual environmental conditions at the scene of the spill. Such a model run could be accomplished in a few minutes. As realtime information becomes available following a spill, SIMAP would be rerun to provide more refined output on spill movement and direction. As a spill response tool, SIMAP can be used to predict the movement of Orimulsion to allow the response teams to deploy protective equipment around sensitive habitats. SIMAP can also be used to direct water column sampling efforts to locate the largest concentration of the spill plume prior to deployment of the containment boom. Since currents are more predictive than winds, SIMAP is more capable of predicting the movement of Orimulsion in the water column than the movement of No. 6 fuel oil as a surface slick. In the event of an Orimulsion spill, deep-skirted boom (with the skirt in a furled position) could be towed to the site by two boats and placed in the path of the spill plume. The two ends of the boom would then be connected and the skirt unfurled to create a cylinder around the largest portion of the bitumen plume. Once the Ori- Boom has encircled the bitumen, it will be allowed to float and drift with the current along with the bitumen, thus keeping the large concentration of bitumen surrounded by the boom. Then shear pumps would be operated inside the cylinder to force coalescence and surfacing of the bitumen. As the bitumen surfaces, Grizzly skimmers would be used to remove the bitumen from the water. Sensitive habitats which are expected to be in the path of the spill plume would be protected by placing exclusion boom in front of the habitats. It is an accepted spill response strategy to identify sensitive habitats, prioritize those habitats as to their sensitivity, and protect the most sensitive habitats first. To facilitate the protection of sensitive habitats, FPL and Bitor America Corporation would use the atlas of sensitive environments in Tampa Bay which identifies the location and type of sensitive habitats, prioritizes those habitats as to their sensitivity, and specifies the most appropriate response strategies to protect each particular sensitive habitat. This atlas of sensitive environments in Tampa Bay will be incorporated into FPL's spill response plans. Since Orimulsion spilled in Tampa Bay would move back and forth with tidal currents, rather than rapidly moving with the wind to shore as does a No. 6 fuel oil surface slick, more time would be available in the event of an Orimulsion spill to plan response strategies. The spill response technologies, strategies and plans FPL and Bitor America have identified for responding to any Orimulsion spill that might occur in Tampa Bay are comparable to those which would apply to a spill of No. 6 fuel oil, the current fuel used at the Plant and brought into Port Manatee. Ecological Effects of Orimulsion Released in Tampa Bay Tampa Bay is the largest estuary system in the State of Florida. It is roughly 60 kilometers long and the typical width is on the order of 10 kilometers. Tampa Bay is a relatively shallow system, with a mean depth of about 3.7 meters. The shipping channel which traverses Tampa Bay is approximately 15 meters deep and 122 meters wide. Prior to the early 1900's, Tampa Bay was dominated in its marine productivity by seagrass. Because of human activities since that time, however, the current spatial extent of seagrasses is about 15 percent of the overall Bay. Changes in bathymetry and erosional losses in Tampa Bay preclude the reestablishment of seagrasses in some of their former range absent extraordinary measures to restore former bay bottom. Tampa Bay's primary productivity now comes from phytoplankton in the system. Notwithstanding the loss of seagrass, Tampa Bay is an extremely diverse estuarine system, providing habitat to approximately 250 species of fish, 1200 species of invertebrates, and 200 species of macro-algae. The mangrove systems and marsh grasses on the shoreline area, as well as the remaining seagrasses, provide part of the energetic base for the Tampa Bay system and structurally provide habitat critical as nursery grounds for many species of fish and invertebrates. To gain an understanding of the ecological effects of an Orimulsion spill in Tampa Bay, FPL commissioned the University of Miami, Rosenstiel School of Marine and Atmospheric Sciences, to coordinate a study of the comparative ecological effects from a release into the environment of Orimulsion and No. 6 fuel oil, the fuel currently used at the Plant. The study was called the "Comparative Oil/Orimulsion Spill Assessment Program" (COSAP). COSAP involved independent, peer-reviewed scientific research conducted by scientists at several institutions, including the University of Miami, Florida International University, University of Massachusetts, University of North Texas and the University of South Florida. FPL provided the sponsorship and defined the nature of the problem on which study was desired, but had no role in conducting the research or in the conclusions drawn from that research. COSAP included research on fuel characterization, chemical and physical weathering, and toxicological studies for selected flora and fauna indigenous to Tampa Bay for both Orimulsion and No. 6 fuel oil. COSAP also included the identification of resources and ecosystems at risk, hydrodynamic modeling, and fate and transport modeling for Tampa Bay. The COSAP research was integrated into a comparative ecological risk assessment (CERA) in which the existing ecological risk of No. 6 fuel oil being released in the Tampa Bay environment was compared to the ecological risk which would exist from a similar-sized spill of Orimulsion in that environment. The different reactions of Orimulsion and No. 6 fuel oil in seawater were significant in assessing the comparative ecological risks because with No. 6 fuel oil, the slick effects and the movement of the slick by wind forces had to be considered. With Orimulsion and the dissolved component of No. 6 fuel oil, the tide and currents within the waterbody largely control the movement of the components. Under COSAP, toxicity tests were conducted on mangroves, seagrasses, and important fish and invertebrate species actually found in Tampa Bay, in addition to the typically- utilized surrogate laboratory species. This is a significant advancement beyond what is normally done in an ecological risk assessment. Historically, fuel oil spills have had varying degrees of impact on seagrasses and mangroves. Chronic toxicity tests demonstrated that Orimulsion would not cause widespread mortality of the seagrass beds or mangrove components of Tampa Bay. Toxicologically, the aromatics from No. 6 fuel oil were found to be a thousandfold more toxic to fish and invertebrate species than the components of Orimulsion at similar concentrations. In the event of a spill, however, the concentration of Orimulsion components in the water column would be approximately a thousandfold greater than the concentration of No. 6 fuel oil aromatics. To evaluate the comparative risk of No. 6 fuel oil and Orimulsion released in Tampa Bay, one must consider both the concentrations to which organisms would be exposed and the relative toxicities. COSAP's Comparative Ecological Risk Assessment (CERA) To incorporate both exposure concentrations and relative toxicities in the COSAP CERA, the researchers used a scenario-consequence analysis. That is, hypothetical sets of conditions were defined to identify a range of conditions that might occur under different types of spill conditions in Tampa Bay. Then the fate, transport, exposure and ecological effects of both a No. 6 fuel oil spill and an Orimulsion spill for these scenarios were evaluated and compared. The scenarios developed for the CERA included four locations: (1) Egmont Key, the location of a major fuel oil spill in 1993; (2) the Skyway Bridge, the location of a collision which caused a portion of the former bridge to collapse; (3) the Turning Point, the 90 degree turn from the main shipping channel into the shipping channel which leads into Port Manatee; and (4) the Port Manatee facility where offloading occurs. The volume of the spills in the scenario-consequence analysis was 10,000 barrels, except for the Port Manatee facility scenarios for which the spill volume was presumed to be 1,000 barrels. Scenarios covered both wet and dry seasons. For the summer scenarios (the wet season), a relatively wet year and a relatively dry year were included. For each season and location, scenarios were chosen at four different start times to represent the range of combinations of wind and tidal events. Altogether, the CERA analysis included 96 scenarios. Each scenario was modeled using a hydrodynamic model developed by the National Oceanic and Atmospheric Administration (NOAA) National Ocean Survey and further calibrated by the University of Miami researchers to the Tampa Bay system. Output from this hydrodynamic model was input to the 3-dimensional fate and transport model, SIMAP. For each scenario, movement of the various components of No. 6 fuel oil or Orimulsion was simulated for five different layers within Tampa Bay. Hourly concentrations were output and transferred to a Datagraphic Information System. The outputs were then integrated over time until concentrations were below the level where significant ecological effects would occur. Exposures (a combination of concentration, time, and component) were then graphically displayed using a scaling methodology and overlaid on the distribution of species in Tampa Bay, allowing for a direct comparison of toxicological effects. In assessing the comparative ecological risks of Orimulsion and No.6 fuel oil, numerous conservative design parameters and assumptions were used for the CERA. For example, the most sensitive life stages of the most sensitive species were utilized, maximum exposure times were assumed even for organisms which could swim out of the affected area after a spill, and a large spill volume was assumed. COSAP CERA Conclusions While an Orimulsion spill would have greater water column effects than a similar- sized spill of No. 6 fuel oil, the No. 6 fuel oil spill would have the added oil slick formation and associated shoreline impacts which are not anticipated from an Orimulsion spill. Overall, the risk to the Tampa Bay ecosystem from a spill of Orimulsion is essentially comparable to the existing risk of a No. 6 fuel oil spill of similar size. The risks from a spill of Orimulsion would not be significantly greater than, nor significantly less than, the risks to the Tampa Bay ecosystem from a similar-sized spill of No. 6 fuel oil. Peer Review of COSAP Research and Conclusions A Science Advisory Panel provided independent scientific peer review of the COSAP research and conclusions. The Panel included leading scientists in the fields of ecological risk assessments, spills of oil in the marine environment, coastal systems, and several representatives of state and federal regulatory agencies. The Science Advisory Panel was involved in a meeting at the inception of COSAP to discuss the overall research goals and objectives, the structure of the research program, and the specific protocols for the toxicological experiments. The Panel also examined the models and statistical approaches to be used for the study. The Panel specifically addressed the issue of the applicability and appropriateness of the ecological risk assessment paradigm, and participated in the development of the scenarios used in the CERA. The Panel reviewed an interim technical support document and provided detailed comments on all components of the research at that time prior to development of the CERA report. The Science Advisory Panel approved the use of the ecological risk assessment framework, the experimental components, the experimental design, the statistical analyses, the scaling methodology, and the conclusions reached in the CERA. Effects of Estrogenic Compounds Following a Spill The Orimulsion to be used at the Plant will include no more than .22 percent nonylphenol polyethoxylate surfactant. The surfactant allows the bitumen particles to remain emulsified in the water, forming a stable emulsion. Hundreds of millions of pounds of nonylphenol polyethoxylate surfactants are used annually in the United States in domestic and industrial products, such as soaps and detergents. Globally, more than a half billion pounds of nonylphenol polyethoxylate surfactants are used annually. Nonylphenol polyethoxylates released in an aquatic environment are broken down by actions of bacteria and sunlight. The final degradation products would be carbon dioxide and water. The warm temperature, intense sunlight and seawater in Tampa Bay would increase the speed of the surfactant's degradation process. Neither the surfactant in Orimulsion nor its intermediate degradation products are expected to persist for more than 30 to 45 days in Tampa Bay, if a spill occurs. Both No. 6 fuel oil and Orimulsion may result in compounds which mimic estrogen being released in the environment following a spill. The polycyclic aromatic hydrocarbons (PAHs) in No. 6 fuel oil are suspected to have such estrogenic properties. Similarly, some of the intermediate breakdown products of the nonylphenol polyethoxylate surfactant in Orimulsion are suspected to have estrogenic effects. Whether there are ecological consequences of such estrogenic compounds when released in the environment has not been established. To the extent marine organisms are exposed to any of the intermediate degradation products of Orimulsion's surfactant during the 30 to 45 days they may persist in Tampa Bay, once the exposure is removed the organisms are able to purge their systems of those compounds. Consequently, no long-term bioaccumulation of these compounds is expected. The surfactant and any effects it may have when released in the environment should not persist for long periods of time due to rapid degradation and the ability of marine organisms to purge their systems of the degradation products after the exposure is removed. Summary of Comparative Spill Risks Given the comparable ecological risks to Tampa Bay of Orimulsion and No. 6 fuel oil, the comparable spill response capabilities for the two fuels, and the substantially lower risk of a spill of Orimulsion than that for No. 6 fuel oil being delivered to the Plant, overall the risk to Tampa Bay will be significantly reduced after the conversion of the Plant to Orimulsion from that which currently exists from the transport of No. 6 fuel oil. Moreover, the conversion of the Plant to Orimulsion will reduce the risk of transfer- related fuel spills statewide. Every time there is a transfer of fuel from one fuel-holding tank to another, whether that holding tank is on a ship or barge, or is part of a terminal or refinery, there is a risk of a transfer- related spill. Deliveries of fuel oil to FPL's plants require from one to three transfers in Florida, depending on whether the terminal at the receiving port is connected directly to the electrical generating plant by pipeline (as at the Plant) or whether fuel must be transferred from the terminal to the plant by barge. Because the conversion to Orimulsion will increase the utilization of the Plant, and reduce the utilization of other FPL plants that burn higher cost oil, it will reduce the number of deliveries and transfers of fuel oil to other FPL plants within the State. This will reduce the number of FPL's annual fuel transfer operations in Florida by 14 percent, from 635 before the conversion to 548 following the conversion. This translates directly into a reduced probability of fuel spills. In addition, over 80 percent of the No. 6 fuel oil burned in Florida is refined at Gulf Coast plants. There are opportunities for transfer spills when fuel ultimately destined for FPL is delivered to and shipped from those refineries. These opportunities for Gulf Coast spills are eliminated with Orimulsion, which is transferred only once, off the coast of Venezuela, before it reaches the receiving terminal at Port Manatee.
Conclusions Burden of Proof 97 Summary of Conclusions 98 Inapplicable Surface Water Quality Permitting Criteria 102 Statues and Rules on Surface Water Discharges 103 Rejection of Similar Arguments in NYDEC Case 105 Outstanding Florida Waters 107 Federal Certification 110 Ecosystem Management 111 Legal and Permit Agreement Covers Surface Water Withdrawals from the Little Manatee River 112 Cooling Pond Groundwater Discharges 117 Secondary Impacts 118 Air emissions (nitrogen and ozone) 120 Salt Water intrusion and associated groundwater "pollution" 122 Groundwater discharges from cooling pond 123 Impacts to residents from truck traffic 123 Cumulative Impacts 124 Ground Water Quality Standards 127 Vertical Extension of ZOD is Consistent with DEP Rules 127 FPL Retains Exemption from Secondary Groundwater Standard 132 BACT Review 133 Availability of Variances 135 RECOMMENDATION 137 APPENDIX 138 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA SITING BOARD IN RE: FLORIDA POWER & LIGHT COMPANY, MANATEE ORIMULSION DOAH Case No. 94-5675EPP PROJECT, APPLICATION NO. 94-35. /
Recommendation Based on the entire record of this proceeding and the foregoing findings of fact and conclusions of law, it is recommended that the Siting Board enter a final order that: Grants Florida Power & Light Company certification pursuant to Chapter 403, Part II, F.S., for the construction and operation of the Manatee Orimulsion Conversion Project subject to the Conditions of Certification filed on January 17, 1996, modified to add Bitor's commitments set out in Finding of Fact 189; and Grants variances from the Manatee County Comprehensive Plan and Land Development Code for wetland mitigation ratios and from the Manatee County Land Development Code for location of required landscaping. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5675EPP To comply with the requirements of Section 120.59(2), F.S. (1995), as construed by the decision in Harbor Island Beach Club, Ltd., v. Dept. of Natural Resources, 476 So. 2d 1350 (Fla. 1st DCA 1985), the following rulings are made on the parties' proposed findings of fact: FPL/DEP/SWFWMD Proposed Findings of Fact. All of the proposed findings of fact proposed by these parties have been reviewed. This review has included consideration of the response to the proposed findings filed by Manasota-88 and MCSOBA. This review reveals that most of the proposed findings of these parties were proven by a preponderance of the evidence and, except as follows, they have been accepted. 3. Last sentence clarified to reflect that, while there will be few other changes to the plant itself, there will be severally significant changes to the project area as a result of conversion to Orimulsion. 12. First sentence, rejected as only proof of a reasonable expectation is possible; otherwise, accepted. 75. Last sentence, "significantly" rejected as argument; otherwise, accepted. 82. Last sentence rejected as irrelevant; otherwise, accepted. 84.-85. In part, conclusions of law; otherwise, accepted. 86. Fourth sentence, rejected as contrary to the evidence in that both analyses should be conducted; otherwise, accepted. Rejected as contrary to the evidence to the extent that it implies that the Preserve is an embayment; otherwise, accepted. Last sentence, rejected as contrary to the evidence to the extent that it implies that the recent increase is uniform throughout the bay, as opposed to in parts of the bay and overall; otherwise, accepted. 106. Rejected as not proven that there will be no cumulative effect over time; otherwise, accepted and accepted in its entirety if it means only that an equilibrium will be reached at some point in time. 108. "Will not," in first two sentences, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 110. "Demonstrated," in second sentence, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 126. "Will not cause," in second sentence, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 128.-130. In part, conclusions of law; otherwise, accepted. In part, conclusions of law; otherwise, accepted. 154. "1.44 percent of the time" clarified; otherwise, accepted. 159. Rejected in part in that Bitor's commitments are not part of the stipulated Conditions of Certification; otherwise, accepted. 161. Rejected in part in that Bitor's commitments are not part of the stipulated Conditions of Certification; otherwise, accepted. Manasota-88/MCSOBA Proposed Findings of Fact. Much of what is proposed by Manasota-88 and MCSOBA as findings of fact actually are conclusions of law. Proposed findings of fact numbered 4 through 203 actually are labeled "Findings Concerning Applicable Laws; most of these propose conclusions of law (although a few proposed findings of fact, mostly related to agency policy, are included.) Many of the other proposed findings of fact numbered 204 through 435 also actually propose conclusions of law. Even as construed by the decision in Harbor Island Beach Club, supra, Section 120.59(2), does not require rulings on proposed conclusions of law. 1.-2. Accepted. Subordinate and unnecessary. (94-5675EPP covers all permits, etc., from all agencies, except for the PSD and NPDES permits.) Conclusion of law. 5.-6. Accepted. Subordinate and unnecessary. 7.-18. Conclusions of law. Subpara. b., rejected as not supported by any evidence; rest, conclusions of law. Rejected as not supported by any evidence. 21.-24. Conclusions of law. 25. Accepted that DEP attempts to follow the guidelines, but they are not clear and are susceptible to different interpretations. 26.-48. Conclusions of law. 49. Accepted but irrelevant or argument. 50.-58. Conclusions of law. 59.-60. In part, conclusion of law; otherwise, accepted but conclusion of law, and either irrelevant or argument. 61. Conclusion of law. 62.-63. Accepted. Accepted but irrelevant because it is not regulated as a discharge. In part, conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the greater weight of evidence; otherwise, accepted. 66.-68. Conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the evidence. 69.-70. Conclusion of law. 71.-72. In part, conclusion of law; otherwise, accepted. 73.-77. Conclusions of law. 78.-79. Conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the greater weight of evidence. Conclusion of law. In part, conclusion of law; otherwise, rejected as contrary to the greater weight of evidence. 82.-86. Conclusions of law. 87. Accepted (but DEP does not issue such permits per se. 88.-90. Conclusions of law. 91. In part, conclusion of law; to the extent that it refers to agency policy, accepted. 92.-96. Conclusions of law. 97.-98. Accepted. 99.-114. Conclusions of law. 115. Rejected as contrary to the evidence. 116.-120. Conclusions of law. 121.-123. Accepted. 124.-126. Rejected as contrary to the evidence. 127. In part, conclusion of law; otherwise, ejected as contrary to the evidence. 128.-131. Accepted. Rejected as contrary to the evidence (as to "any other form of record evidence"). Conclusion of law. Last sentence, accepted; otherwise, conclusion of law. Rejected as contrary to the greater weight of evidence (that DEP uses "two different non-rule policy interpretations.) First sentence, rejected as contrary to the greater weight of evidence; second, conclusion of law. 137.-142. Conclusions of law. 143. Rejected as contrary to the greater weight of evidence. 144.-145. Subparagraphs, accepted; rest, conclusions of law. Conclusion of law. Accepted. 148.-150. Conclusions of law. 151.-153. Accepted (but as to 153, only sodium is a primary standard.) 154. Rejected as not clear from the evidence what is "common regulatory practice." 155.-157. Conclusions of law. 158.-159. Rejected as contrary to the greater weight of the evidence (that DEP was "deviating from the common regulatory practice.") 160.-168. Conclusions of law. 169. Rejected as contrary to the greater weight of the evidence. 170.-172. Conclusions of law. 173. In part, conclusion of law; otherwise, rejected as contrary to the greater weight of the evidence (that salt water intrusion results). 174.-179. Conclusions of law. 180.-181. Accepted. 182.-190. Conclusions of law. 191. Accepted. 192.-193. Conclusions of law. Rejected as contrary to the greater weight of the evidence. Accepted. 196.-203. Conclusions of law. 204. "Very sensitive" rejected as argument not supported by evidence; otherwise, accepted. 205.-211. Accepted. 212.-213. Rejected as contrary to the evidence that excessive nitrogen is the only cause; otherwise, accepted. 214.-216. Accepted. Rejected as contrary to the greater weight of the evidence as to all of Tampa Bay; accepted as to parts of the bay. "At least 10 percent," rejected as contrary to the evidence; also, the TBNEP proposal is not clear from the evidence in the record. (Cf. Garrity, T. 2110-2111.) Rejected as contrary to the greater weight of the evidence. (The estimate was calculated using a .27 lbs/mmBtuM emission rate.) 220.-221. Accepted. (Variation primarily is driven by rainfall.) Rejected as contrary to the greater weight of the evidence. (The witness's estimate, which was very rough, was referring to atmospheric deposition, not nitrogen loading; the two are different, and the percentage increase of the former actually is higher than the actual percentage increase in the former resulting from the Orimulsion conversion project.) First clause (the premise), accepted; second (the conclusion), rejected as contrary to the greater weight of the evidence. (Ozone may affect "dry deposition"; but much more atmospheric deposition is "wet deposition," which can vary by an order of magnitude depending on rainfall.) 224.-225. Rejected as contrary to the greater weight of the evidence. (The witness was referring to atmospheric deposition, not total nitrogen loading. See 222., above.) Rejected as contrary to the greater weight of the evidence. Accepted. (However, while there might be some longer term impacts from sedimentation, those affects will be marginal, first because the impacts themselves are marginal, and second because nitrogen entering the sediments also will be subject to denitrification through biological and chemical processes and to burial over time.) 228.-229. Conclusions of law; also, subpara. c., rejected as contrary to the greater weight of the evidence. Accepted in the general sense that it is 21 tons in the wrong direction. However, the "detrimental effect" was not measurable. Accepted. (It is not clear what "water quality levels" are meant. F.A.C. Rule 62-302.530(48)(b) speaks for itself. Presumably, "water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Conclusion of law whether the rule applies. In any event, rejected as contrary to the greater weight of the evidence that "no evidence" was presented. Rejected. First, conclusion of law whether air emissions are a "proposed discharge," and whether the "clearly in the public" test applies. Second, assuming that the test applies, and that it raises a mixed question of law and fact (not a pure question of law), neither of the witnesses cited were in a position to give competent testimony on the issue. Accepted. (There was no evidence as to where in the bay the violations occur.) Conclusion of law; also, subparagraphs a. and d., rejected as contrary to the greater weight of the evidence. Conclusion of law; also, subpara. c., rejected as contrary to the greater weight of the evidence. Accepted. (It is not clear what "ambient water quality levels" are meant. F.A.C. Rule 62-302.530(48)(b) speaks for itself. Presumably, "ambient water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. 240.-241. Rejected as contrary to the greater weight of the evidence. (There was no indication of what the witness meant by "nuisance condition." Compare testimony to F.A.C. Rules 62- 302.500(1)(c) and 62-302.530(47). Accepted (assuming reference is being made to atmospheric deposition. See 222., above.) Rejected as contrary to the greater weight of the evidence. (TBNEP projection was hearsay.) 244.-245. Rejected as contrary to the greater weight of the evidence. 246.-249. Accepted. 250. Rejected as contrary to the greater weight of the evidence. ("Trophic," not "tropic," state index.) 251.-253. Accepted. 254.-255. Rejected as contrary to the greater weight of the evidence. Accepted. (It is not clear what "water quality levels" are meant, or what "nuisance standard" is meant. In any event, both F.A.C. Rules 62-302.500(1)(c) and 62-302.530(47) speak for themselves. Presumably, "water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (The rule was judged not to apply.) Rejected as contrary to the greater weight of the evidence. (Other parameters were "reviewed" in the sense that they were considered along with salinity, but only salinity was studied in detail.) 260.-262 Accepted (but, as to 261., the extent of "further degradation" of water quality required to degrade biological productivity is not specified, so fact is not useful.) Accepted, but a conclusion of law whether it is "foreseeable" for purposes of "cumulative effects." Rejected as contrary to the greater weight of the evidence. (The evidence was 5 percent of the months.) Rejected as contrary to the greater weight of the evidence. (The option was considered and rejected.) Otherwise, accepted. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (The evidence was it was 6, but it is changing.) Accepted but so general and speculative as not to be useful. 269.-270. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (While absolute certainty does not appear to be possible at this time, DEP seems to have made this determination based on the best information available.) Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as to RPM; accepted as to EKMA. 275.-278. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. (While absolute certainty does not appear to be possible at this time, it is believed based on the best information available that the Tampa Bay airshed is VOC-limited.) Conclusion of law. 283.-284. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. 288.-289. To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Accepted. The evidence is not clear that the expansion is "foreseeable." 293.-296. Accepted. 297. Rejected as contrary to the greater weight of the evidence. (42.23 is an absolute maximum per day; there also is a maximum 30-day rolling average.) 298.-299. Rejected as inaccurate calculation. 300.-301. Accepted. 302. Rejected as contrary to the greater weight of the evidence. (Emissions from the Manatee Plant were not part of the Hillsborough/Pinellas inventory of stationary sources.) 303.-304. Accepted. 305. Rejected as contrary to the greater weight of the evidence. See 298.-299. and 302., above. 306.-307. Accepted. 308.-309. Rejected as contrary to the greater weight of the evidence. See 302., above. Accepted. Rejected as contrary to the greater weight of the evidence. (There was circumstantial evidence, but a "correlation" was not determined.) Rejected as contrary to the greater weight of the evidence. Not clear from the evidence, especially without a corresponding VOC reduction. Also, so general as to be of little usefulness. 314.-315. Accepted. 316. Rejected as contrary to the greater weight of the evidence. (The evidence was that, at the time of the hearing, the SWUCA was a proposed rule and that the proposed withdrawals are in the Eastern Tampa Bay WUCA.) 317.-318. See 316., above; otherwise, accepted. The Floridan was not specified; otherwise, accepted. Accepted, assuming "sources" and "uses" mean the same thing. See 316., above. Accepted. Accepted (although specific reference only was to the former FPL wells.) Rejected as not supported by evidence on which a finding of fact could be made. 325.-326. Rejected. (These appear to be conclusions of law, although the intended legal significance of "straight transfer" is not made clear.) 327. Conclusion of law. 328.-329. Rejected as contrary to the greater weight of the evidence. 330. See 316., above. 331.-332. Rejected as contrary to the greater weight of the evidence. See 316., above. Rejected as contrary to the greater weight of the evidence. (The explanation was that the SWFWMD regulations allow it.) 335.-337. Rejected as contrary to the greater weight of the evidence. 338. Accepted. (That is why the ZOD was expanded vertically.) 339.-341. Rejected as contrary to the greater weight of the evidence. 342. Cumulative. 343.-344. Rejected as contrary to the greater weight of the evidence. Unintelligible. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. See 346., above. Rejected as contrary to the greater weight of the evidence. Rejected as not supported by any evidence. Rejected. Not a legal requirement. 352.-353. Cumulative. 354. Rejected as not supported by any evidence. 354.(Number 2) Not clear what is meant by "water communities." An oil spill will affect the surface and shore more; Orimulsion would affect the water column and bottom more, especially in deeper water. 355.-356. Accepted. Rejected as contrary to the greater weight of the evidence. Rejected as not clear from the evidence what the impact on property values will be. Also, not subject to determination in this case. Rejected. F.A.C. Rule 60Q-2.031(3). Not subject to determination in this case. Rejected. Subpara. a., rejected as contrary to the greater weight of the evidence. Subpara. c., unclear what is being referenced. Also, effect on government jurisdictions other than Manatee County not subject to determination in this case. Rejected as not supported by any evidence. Rejected as contrary to the greater weight of the evidence. (As to c., no evidence as to what is meant or how it would help.) Rejected as contrary to the greater weight of the evidence. (However, as proposed, Bitor is the responsible party.) Rejected as contrary to the greater weight of the evidence that these methods are "reasonable." (As to d., the rule does not apply.) Rejected as not supported by any evidence that this alternative is "reasonable." 367.-368. Rejected as contrary to the greater weight of the evidence. Unintelligible. Conclusion of law. Accepted. 372.-377. Conclusions of law. 378.-379. Accepted. 380.-383. Conclusions of law. 384. Accepted. 385.-386. Conclusions of law. 387. Accepted. 388.-389. Conclusion of law. Accepted. Rejected as not supported by any evidence. 392.-395. Conclusions of law. 396. Rejected as contrary to the greater weight of the evidence. 397.-398. To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence as to "foreseeable cumulative" impacts; also no evidence that foreseeable cumulative impacts "justify higher than normal BACT." Conclusion of law. Rejected as contrary to the greater weight of the evidence. (DEP tries to follow it, but it is complicated and difficult to apply.) Rejected as not supported by the evidence. (The only evidence was that EPA suggested that DEP give proper consideration to the claims of some SCR manufacturers that their technology achieves .10 lbs/mmBtum.) Accepted. 403.-404. Accepted (assuming reference is made to average costs.) Accepted. Rejected as contrary to the greater weight of the evidence. (There also were other factors.) Accepted. (However, the initial application has been modified in many respects during the course of these proceedings.) Accepted. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that it is BACT or that it was the only calculation making those emissions rate assumptions. Accepted. (Incremental cost calculations also are recommended.) 412.-414. Conclusions of law. 415. Accepted. 416.-418. Rejected as not supported by facts on which findings of fact can be made. 419. Accepted. (However, that was just one of several calculations and not FPL's final calculation.) 420. Rejected as not clear from the evidence that both calculations used .395 lbs/mmBtum. 421.-422. Accepted. 423.-426. Rejected as contrary to the greater weight of the evidence. (As to 425., it is not technically feasible for this application, so it cannot be economically feasible; where technically feasible, it has been shown to be economically feasible as well.) 427. Accepted (although it varies from year to year.) 428. Rejected as not supported by any evidence. 429. Accepted (but vanadium content is not high enough to create problems of technical feasibility.) 430.-435. Cumulative. Conclusions of law. Manatee County Proposed Findings of Fact. 1.-10. Accepted. Rejected as contrary to the evidence and to proposed finding 12 that it is the only required variance. Accepted. To the extent that accepted proposed findings are not contained in the Findings of Fact, there were considered to be subordinate, irrelevant or otherwise unnecessary. COPIES FURNISHED: Peter C. Cunningham, Esquire Carolyn S. Raepple, Esquire Kathleen L. Blizzard, Esquire Douglas S. Roberts, Esquire Gary V. Perko, Esquire Hopping Green Sams and Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Charles T. "Chip" Collette, Esquire Twin Towers Office Building Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 H. Hamilton Rice, Esquire Mark P. Barnebey, Esquire Jeffrey N. Steinsnyder, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712 Roger S. Tucker, Esquire General Counsel Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702-2491 Preston T. Robertson, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Bridgett A. Ffolkes, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue The issue for determination is whether Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 (Respondent Cleaners) operates as a drycleaning facility at 1197 West 35th Street, Hialeah, Florida. Colombina Holding Company, N.V., Inc. (Intervenor) is the owner of the real property located at 1197 West 35th Street, Hialeah, Florida. Respondent Cleaners made application with the Florida Department of Environmental Protection (Respondent DEP) for state-administered cleanup under the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program). By letter dated October 25, 1996, Respondent DEP notified Respondent Cleaners, among other things, that its application was approved and that it was eligible to participate in the Drycleaning Cleanup Program. Prior to Respondent Cleaner's approval to participate in the Drycleaning Cleanup Program, Metropolitan Dade County (Petitioner) issued to Respondent Cleaners a Notice of Violation and Orders for Corrective Action (NOV) for contamination at the drycleaning facility. The NOV required Respondent Cleaners to assess and remediate the contamination and to pump out and clean a soakage pit. Having received the NOV, Respondent Cleaners obtained the services of an environmental consultant to assess the contamination on the site and to propose a plan of remediation. Respondent Cleaners maintained contact with Petitioner and advised Petitioner of the progress. Petitioner required Respondent Cleaners to submit a Contamination Assessment Report (CAR) and IW Process Change Plans for the facility. Respondent Cleaners complied with the requirement. By letter dated November 21, 1996, counsel for Respondent Cleaners made inquiry to Respondent DEP as to whether pump out or cleaning of contamination in a soakage pit was included within the Drycleaning Cleanup Program. On November 20, 1996, Petitioner's Department of Environmental Resources Management (DERM) conducted a routine inspection and a receptor survey of Respondent Cleaners. No violations were observed by the inspector. Respondent Cleaners has not remediated the contamination at the facility site.
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 finding Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998.
The Issue The issues in this case are whether Respondent, L.B. King, Jr., violated certain rules relating to petroleum contamination site cleanup criteria promulgated by Petitioner, Department of Environmental Protection (Department), whether he should be required to pay an administrative fine and investigative costs and expenses incurred by the Department, and whether he should take corrective action, as described in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice of Violation) issued on June 15, 2007.
Findings Of Fact Based upon the record presented by the parties, and those allegations in the Notice of Violation which are undisputed, the following findings of fact are determined: Respondent is the owner and operator of non-residential property (doing business as King Oil and Tire) located at 16776 Southeast U.S. Highway 19 (at Main Street and Ward Street) in Cross City, Florida. He has owned the property since June 30, 1982. Since July 1978, eight regulated petroleum storage tanks were situated on the property. See Fla. Admin. Code R. 62- 761.200(20), (45), (53), and (65). The Department has assigned facility identification number 15/8839661 to the site. During the intervening time period since Respondent assumed ownership, six of the tanks and their associated piping have been closed or removed, including tank 4 in August 1997 and tanks 5 and 6 in March 2004. Tank 4 was a 1,000 gallon diesel underground storage tank system (UST) originally installed in July 1982, tank 5 was a kerosene UST installed in July 1978, while tank 6 was a waste oil UST installed in July 1978. Only tanks 7 and 8 still remain in service. After tank 4 and the associated piping were closed in August 1997, Respondent conducted a closure assessment in the area of tank 4 and performed soil and groundwater analytical sampling in the area of its former piping run. He then filed a Tank Closure Assessment Report (TCAR) with the Department on August 19, 2003. The TCAR revealed groundwater contaminants above the Department's Cleanup Target Levels (CTLs) for Methylnapthalene in two respects and for Naphthalene. See Fla. Admin. Code R. 62-777.170(1)(a), Table I. Because of the presence of contamination on the site, on September 3, 2003, the Department sent Respondent a letter requesting that he submit a Discharge Report Form (DRF) and initiate a site assessment, as required by Florida Administrative Code Rule 62-770.600, and that he file a completed site assessment report by July 10, 2004.3 Subsection (1) of that rule requires that "[w]ithin 30 days of discovery of contamination, the responsible party shall initiate a site assessment." On September 29, 2003, the Department received the requested DRF. During a tank closure inspection of tanks 5 and 6 performed on March 4, 2004, the Levy County Health Department, acting on behalf of the Department, discovered stained soils in the fill area of tank 6. On May 18, 2004, the Department received a TCAR dated May 7, 2004, for the closure of tanks 5 and 6. The TCAR documented the results of laboratory analytical tests on groundwater samples, which revealed groundwater contaminants above the Department's CTLs for Methylnapthalene in two respects. On May 24, 2004, the Department received from Respondent a copy of a DRF (dated March 9, 2004, as amended on April 9, 2004) for the contamination related to tanks 5 and 6. The DRF was the last report filed by Respondent concerning tanks 5 and 6. On the same date, the Department sent Respondent a letter requesting that he initiate site assessment activities for the discharge related to tanks 5 and 6, as required by Florida Administrative Code Rule 62-770.600(1). On July 14, 2004, the Department sent Respondent another letter requesting (a) completion of a site assessment and (b) the submission of a Site Assessment Report (SAR) for the discharge from tank 4 (SAR-97), which complied with the requirements of Florida Administrative Code Rule 62-770.600(8). (The SAR-97 was originally due on July 10, 2004, but had not yet been filed.) In order to be deemed complete, a SAR must contain all of the information detailed in subsection (8). Also, the letter requested that a SAR for the 2004 discharge (SAR-04) be completed no later than August 1, 2004, as required by Florida Administrative Code Rule 62-770.600(7). That subsection requires in relevant part that "[w]ithin 270 days of discovery of contamination, the responsible party shall submit to the Department or to the FDEP local program for review two copies of a [SAR] " On July 15, 2004, or the day after the above letter was mailed, the Department received a copy of the SAR-97 from Respondent. The report was then referred to the Department's Petroleum Cleanup Section for its review. By letter dated August 27, 2004, the Department advised Respondent that SAR-97 was under review. The letter also changed the due date for the SAR-04 from August 1, 2004, to November 9, 2004. On September 15, 2004, the Department received correspondence from Respondent requesting an extension of time in which to submit his SAR-04. On December 10, 2004, the Department approved the request and authorized Respondent to file a SAR-04 no later than March 1, 2005. On April 12, 2005, Respondent filed with the Department a Site Assessment Report Addendum (SARA) for the 1997 discharge (SARA-97). The report was dated March 1, 2005. On May 25, 2005, the Department sent Respondent a letter requesting that he file two copies of a supplement to the SARA-97 no later than July 5, 2005, to address certain deficiencies noted in that report, as required by Florida Administrative Code Rule 62-770-600(11). That subsection provides that "[i]f the [SAR] is incomplete in any respect, or is insufficient to satisfy the objectives of subsection 62- 770.600(3), F.A.C., the Department or the FDEP local program shall inform the responsible party pursuant to paragraph 62- 770.600(9)(b), F.A.C., and the responsible party shall submit to the Department or to the FDEP local program for review two copies of a [SARA] that addresses the deficiencies within 60 days after receipt of the notice." The same letter also requested that a disposal manifest be provided for the tank and piping closures. On July 11, 2005, the Department received a second SARA-97 from Respondent's consultant. On July 14, 2005, it also received the disposal manifest documentation for the closure of tank 4 and its piping. These were the last reports filed by Respondent. On October 4, 2005, the Department sent Respondent a letter requesting that he provide two copies of a third SARA for the 1997 discharge to address deficiencies noted by the Department in the second SARA. The letter indicated that the third SARA was to be filed no later than November 23, 2005. The Department also requested that he provide a completed financial affidavit to justify Respondent's claim that he was financially unable to complete the remaining required cleanup corrective actions at his property. On November 29, 2005, Respondent requested an extension of time to complete the third SARA-97. (The reason for the requested extension was that Respondent's insurance carrier would not give authorization for the work.) On January 12, 2006, the Department advised Respondent by letter that his request had been denied and that he must submit either the third SARA or a financial affidavit, as previously requested, no later than February 15, 2006. In its response, the Department indicated that it did not "consider generic delays by contractors or insurance carriers as good cause for an extension." To date, neither filing has been made. By failing to file the requested third SARA for the 1997 discharge, Respondent has contravened the requirements of Florida Administrative Code Rules 62-770.600(11) and 62- 770.800(3), which require that within 60 days after notice, a responsible party submit a SARA to address deficiencies noted in a SAR. Respondent's conduct also implicates Florida Administrative Code Rule 62-770.800(5), which makes it a violation of two Florida Statutes for a responsible party to not submit requested information within the time frame specified. Since March 1, 2005, which was the due date on which a report was to be filed, Respondent has failed to submit an approved SAR for the 2004 discharge, as required by Florida Administrative Code Rule 62-770.600(7), which in turn contravenes Florida Administrative Code Rule 62-770.800(3) and (5). To date, Respondent has failed to complete site assessment activities for both the 1997 and 2004 discharges, as required by Florida Administrative Code Rule 62-770.600(10). That provision states that "[s]ite assessment activities shall not be deemed complete until such time as a [SAR] is approved." To date, Respondent has failed to timely and completely assess and remediate the contamination at his property, as required by Florida Administrative Code Rule Chapter 62-770. That chapter contains the criteria which apply to the cleanup of a site contaminated with petroleum products. During the course of its investigation of this matter, the Department has incurred expenses "in the amount of not less than $500.00." As mitigating evidence, Respondent offered into evidence Respondent's Exhibits 2-15, the majority of which pertain to his insurance policy and the pending litigation with his carrier, Mid-Continent Casualty Company (MCC), or the priority score funding process, which is the process by which contaminated properties are scored or rated for purposes of determining eligibility to receive state cleanup funds when the responsible party is financially unable to do so. Although evidence regarding the insurance policy and pending litigation was deemed to be immaterial to the issues of establishing Respondent's liability for the violations and responsibility for undertaking the corrective actions necessary to satisfy the violations, the undersigned ruled that it could be used by Respondent as mitigating evidence, if relevant, for the purpose of seeking to reduce the administrative penalty. Respondent's Exhibits 8, 9, and 11 indicate that after he reported the 2003 discharge to MCC, in 2003 the carrier denied coverage for that discharge (on the ground "any 'confirmed release' must commence after the retroactive date of the policy (4/3/98)"). However, MCC initially accepted coverage for the 2004 discharge and authorized Respondent's environmental consultants to conduct a site assessment. The documents further show that in December 2005, or before the 2004 site assessment had been completed and a SAR prepared, MCC reversed its position and denied coverage for the 2004 discharge on the ground there was no "Confirmed Release," as defined by the policy. Respondent then filed his lawsuit seeking a determination that the carrier was responsible for cleanup costs. Respondent asserts that he has expended more than $50,000.00 in pursuing the lawsuit, which is much more than the administrative penalty being assessed by the Department. Respondent points out that prior to the time MCC reversed its position as to coverage for the 2004 discharge in December 2005, he had filed a DFR, TCAR, disposal manifest, SAR- 97, and two SARAs for the 1997 discharge, and a TCAR and DFR for the 2004 discharge, all of which indicate a good faith effort on his part to comply with the assessment requirements. As noted above, the final reports prepared by Respondent's consultant were a second SARA-97 and a disposal manifest for the 1997 discharge, which were filed with the Department in July 2005, and a TCAR and DRF for the 2004 discharge filed in May 2004. Respondent's Exhibit 10A recites language in Coverage B of the insurance policy, which provides in part that MCC "will pay Clean-up Costs by an Insured for environmental damage that an Insured is legally obligated to pay . . . ." Respondent argues that if he acknowledges by affidavit or other proof that he does not have the ability to pay for cleanup costs, he fears that under the above language, MCC would not be "legally obligated to pay." This is because Section 376.3071(7)(c), Florida Statutes, provides that when a responsible party does not have the ability to pay for all of the cleanup costs, the Department "may" enter into an agreement with the responsible party to undertake all or part of the site rehabilitation after "taking into consideration the party's net worth and the economic impact on the party." Respondent contends that if he files an affidavit under this statute, MCC would then be relieved of any responsibility under the policy, and his rights in the lawsuit would be jeopardized. Respondent further points out that several other provisions in the insurance policy prohibit him from completing the assessment until the litigation is concluded. For example, one provision (Section II.B) provides that "No Clean-up Costs, charges, and expenses shall be incurred without the Company's consent," while another (Section II.C) provides that "An Insured shall not admit or assume any liabilities or settle any Claim(s) without the Company's consent." Respondent asserts that these provisions prevent his consultant from conducting any further work on the site without MCC's consent, and if he does so, he will lose the right to reimbursement under the policy. Finally, Exhibits 3 through 6 show that Respondent's property has been assigned a site ranking score of ten points, and that the Department is currently funding sites that are eligible for state restoration funding only if they have scores of 37 points and higher. Thus, Respondent argues that a delay in remediation of the site is not unreasonable. Except for the two discharges at issue in this case, there is no evidence that Respondent has a history of non- compliance or that he gained any direct economic benefit by virtue of the discharges. Although no reports have been filed since July 2005, through counsel, Respondent has kept the Department abreast of his efforts to establish liability on the part of MCC so that the site assessments can resume.
The Issue The issue is whether Respondents should have an administrative penalty imposed, take corrective action, and pay investigative costs for allegedly maintaining a solid waste management facility without a permit and disposing of solid waste in an area subject to periodic or frequent flooding.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background DDD is a corporation registered to do business in the State of Florida. Its president and sole director is William H. Stanton, Jr. The corporation is engaged in the business of "mobil recycling activities" (reduction recycling services for customers). Mr. Stanton owns a two-acre tract of property located in Section 26, Township 28S, Range 24B, on the northwest corner of Mustang Road and Longhorn Drive, Lakeland, Florida. The property is zoned for heavy industrial uses and was formerly used in some form of phosphate mining operations. The Department is the agency charged with the duty of administering and enforcing the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder. Based upon a complaint made by a Polk County Health Department employee, on October 8, 2001, a Department enforcement coordinator, Steven G. Morgan, inspected Mr. Stanton's property and observed that Respondents had filled and compacted an approximate 150 foot by 300 foot area of the site with 3 to 5 feet of "wallboard type material," which consisted of "both ground up and large pieces of wallboard." In the middle of the filled area was an additional pile of the same material around 20 to 25 feet high. Petitioner's Exhibits A, D, and E are photographs which provide an accurate representation of the site on the date of the inspection. Based on a visual inspection, but without having the benefit of his own laboratory analysis,2 Mr. Morgan concluded that the material was a solid waste made up of discarded industrial products. Under Department rules, the deposit of solid waste on such a site requires a waste facility management permit from the Department. A check of Department records indicated that Respondents do not hold a permit to operate a solid waste management facility. (DDD does hold a valid air pollution permit for grinding concrete.) During his inspection, Mr. Morgan also observed that the land adjacent to the filled area was wet, had a lower elevation than the compacted area, and contained small pockets of standing water. This was confirmed by photographs received in evidence as Petitioner's Exhibits D and E. A DDD employee who was present on the site during the inspection indicated that approximately 900 truck loads of the material had been transported to the site from Plant City after Mr. Stanton had "lost" a lease on the property on which the material had previously been placed. This was confirmed by Mr. Stanton who arrived at the site shortly after the inspection began, and who indicated that he intended to use the compacted wallboard as a sub-base (or foundation) for a wallboard recycling facility. A second site inspection by Mr. Morgan conducted on February 5, 2002, confirmed that the conditions (regarding the piles of fill material but not the standing water) at the site were unchanged from those found on October 8, 2001. On that visit, Mr. Morgan observed the site from his automobile but did not walk the property. Two other site visits were made, one on June 19, 2002, by other Department personnel. Except for a photograph (Petitioner's Exhibit C) dated June 19, 2002, which indicates the piles of material were still intact and had not been removed, the results of those inspections are not of record. Shortly after the initial inspection, the Department's Tampa District Office issued a warning letter to Mr. Stanton describing Mr. Morgan's observations and outlining the potential violations. The letter also invited Mr. Stanton to resolve the matter informally and to present a corrective action plan to mitigate the site. When the matter could not be resolved informally, the Department issued its Notice on October 10, 2002, alleging that Respondents had operated a solid waste facility without a permit and had deposited solid waste in an area prone to flooding. Even though the matter was not informally resolved, Mr. Stanton has cooperated with the Department in good faith throughout the regulatory process. The Material on the Site Invoices received in evidence reflect that the source of the deposited material was James Hardie Building Products in Plant City, Florida, and that the material was described on the invoices as "Dry Waste Material," Wet Waste Material," and "Foreign Material." James Hardie Building Products manufactures HardieBoard, which is a one-half to one-inch thick concrete formulated product used in the construction of homes and other buildings, and HardiePipe, which is used in road and bridge construction, culverts, storm sewers, and concrete pipes. The material being deposited was material used in the manufacture of HardieBoard. Mr. Stanton's long-range plans are to grind up, or recycle, the material (after all necessary permits, if any, are obtained) and then sell it to other persons, including cement manufacturing plants in the area, who will then use it for a variety of purposes, including subbase and base material, cement and concrete re-additive, and cement production. HardieBoard (as well as HardiePipe) is a variable mixture of Portland cement, water, fine silica sand, less than 10 percent cellulose (a non-toxic organic material commonly added to such products as ice cream, shampoo, baby diapers, and rayon clothing), and less than 10 percent of inert materials. The cellulose fibers are added to the concrete to avoid cracking and shrinkage and to reduce the weight of the product. Unlike concrete used for driveways and the like, HardiBoard does not have any large aggregate. Disposal of Solid Waste and Clean Debris Florida Administrative Code Rule 62-701.300(1)(a) prohibits the storing, processing, or disposing of solid waste except at a permitted solid waste management facility. In addition, no solid waste may be stored or disposed of "[i]n an area subject to frequent and periodic flooding unless flood protection measures are in place[,]" or "[i]n any natural or artificial body of water including ground water." Fla. Admin. Code R. 62-701.300(2)(d) and (e). These requirements form the basis for the charges in the Notice. Florida Administrative Code Rule 62-701.200(113) defines solid waste in relevant part as "discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations." Section 403.707(2)(f), Florida Statutes (2003), provides, however, that a permit is not required for "[t]he use of clean debris as fill material in any area." See also Fla. Admin. Code R. 62-701.220(2)(f). "Clean debris" is defined in Florida Administrative Code Rule 62-701.200(15) as: any solid waste which is virtually inert, which is not a pollution threat to ground water or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. The term includes brick, glass, ceramics, and uncontaminated concrete including embedded pipe or steel. The term "virtually inert" is not defined by statute or rule. However, the parties agree that in order for a material to be "virtually inert," it must have no potential for leaking contaminants into the groundwater. In addition, if a deposited material releases contaminants into the groundwater thereby posing a threat to human health, it is considered a "threat to [groundwater]" within the meaning of the rule. The rule also provides that the material must not be a fire hazard. Finally, if a material decomposes over time after being used as fill, and releases contaminants into the groundwater, it is not "likely to retain its physical and chemical structure under expected conditions of disposal or use." Therefore, if a material has no potential for leaking contaminants into the groundwater, is not a threat to groundwater, is not a fire hazard, and is not likely to decompose over time, it constitutes clean debris and is exempt from the waste management facility permitting requirements. As noted above, Florida Administrative Code Rule 62- 701.200(15) identifies four materials that are considered to be clean debris: brick, glass, ceramics, and uncontaminated concrete. If a waste product is classified as uncontaminated concrete, it constitutes clean debris and may be used as fill without a permit from the Department. Further, clean debris may be deposited in an area subject to frequent or periodic flooding so long as flood protection measures are taken, or in a natural or artificial body of water so long as other appropriate permits (such as an Environmental Resource Permit) are obtained. Here, the central issue is whether the material deposited on Mr. Stanton's property is solid waste or clean debris. This issue turns on whether the material is virtually inert, is not a pollution threat to groundwater or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. Assuming these criteria are satisfied, the material is exempt from Department permitting requirements for solid wastes. On this issue, the Department contends that the material is not virtually inert and is unlikely to retain its physical and chemical structure. Conversely, Respondents assert that the material is clean debris and falls within the category of uncontaminated concrete. Is the Deposited Material Clean Debris? In determining whether a material is virtually inert, or is a pollution threat to ground or surface waters, two extraction procedures have been sanctioned by the United States Environmental Protection Agency to assist in the measurement of the amount of contaminants that will leak from a material: the Toxicity Characteristic Leaching Procedure (TCLP) and the Synthetic Precipitation Leaching Procedure (SPLP). Under both procedures, the material being tested is ground up into small sand-size particles, mixed with an extraction fluid, and tumbled for 18 hours in a rotary agitator while the liquid solution extracts various metals that are found in the solids. The extracted liquid solution is then filtered and analyzed to determine the concentration of metals actually leached from the solids. Under state water drinking standards found in Table 1 of Florida Administrative Code Chapter 62-550, the maximum contaminant levels for chromium and barium (stated in milligrams per liter (mg/L)) are 0.1 mg/L and 2 mg/L, respectively. In reaching its conclusion that the fill material is a solid waste, the Department relied principally on certain tests of the material run by various laboratories between 1998 and 2000, which showed that the amount of chromium and barium leaking out of the product exceeded the State drinking water standards. See Petitioner's Exhibits K, L, M, and O. However, in every one of those tests, the laboratories used the TCLP, rather than the SPLC, which produced a worst case scenario. For the reasons stated below, the TCLP is not the appropriate procedure to be used for this purpose. The TCLP is the more aggressive of the two procedures, uses a much harsher solution than the SPLC, and generally leaches higher concentrations of metals. However, its principal purpose is to determine whether a material should be classified as a hazardous waste based on its leaching properties or characteristics. Using it to predict whether a material will leach into ground water is inappropriate because it will "leach things out in the laboratory that will never leach in the field." This is because it does not mimic conditions in the field and is "just not supposed to be used for this purpose." Therefore, TCLP leachate values should not be applied to drinking water standards. Conversely, the SPLC uses a less harsh solution during the preparation process, evaluates the potential for leaching metals into ground and surface waters, and is designed to provide a more realistic assessment of metal mobility under actual field conditions. In other words, the SPLC simulates what would happen if the sample were exposed to groundwater and rain to determine if under those conditions metals might leach into the water system below. Therefore, the SPLC is the more appropriate procedure to use here to determine whether the HardieBoard material will leach certain metals into the groundwater at levels that exceed State drinking water standards. Even various Department guidance documents provide that the SPLC (rather than the TCLP) should be used to determine if a material will leach metals into the ground water. See Respondents' Exhibits M, N, and O. Respondents' witness Foster collected three samples of HardieBoard deposited by Respondents at another site and submitted them to PPB Environmental Laboratories, Inc., in Gainesville, Florida, for a clinical analysis using the SPLC test. Those results, which have been accepted as being reliable,3 indicate that none of the leachate concentrations for arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver exceed (or even approach) the drinking water standards. Therefore, the material is virtually inert, and the groundwater quality will not be adversely impacted by use of this material as fill. The parties agree that the material is not a fire hazard. Prior to depositing the material, Mr. Stanton used a commercial waste reduction machine (a Smorcazy Bandit Beast 3680 Horizontal Trough Grinder) to grind or pulverize some of the material into fine particles. As noted earlier, a small amount of cellulose fibers are added to the product during the manufacturing process. The Department contends that after the grinding process occurs, these fibers will separate from the remaining fine particles and dissolve into the ground water. Because of this separation, the Department asserts that the material does not retain its physical or chemical structure after being deposited onto the property. Although cellulose fibers are added to the product during its preparation to strengthen the material (and have been added by cement manufacturers since the 1920s), they are distributed throughout the matrix in the material. This means that the fibers become "part and parcel of the mixture" and will not deteriorate, fall out, or leach out of the material even after routine grinding processes, such as that done by Respondents. As such, the cellulose is not biodegradable, and there is no concern that the cellulose will dissolve into the groundwater. Indeed, HardiePipe, which is used in the construction of culverts, storm sewers, and drainage pipes and has essentially the same constituents as HardieBoard, was approved by the Florida Department of Transportation in 2001 for use on State road and bridge projects. Therefore, it is found that the fill material will retain its physical and chemical structure after being deposited onto the ground. Expert testimony by Dr. McClellan established that the material meets the general definition of concrete, and because it is uncontaminated, it should properly be classified as uncontaminated concrete. As such, the material is clean debris and is not subject to the Department's solid waste management permitting requirements. Finally, the Department points out that the compressive strength (measured in pounds per square inch (PSI)) is much greater for concrete used in driveways than for HardiBoard (2500 PSI versus 20 to 30 PSI), and therefore Hardiboard is not a true concrete product. While the PSI values are indeed substantially different, the load bearing ratio or compressive strength of the material does not determine whether a material falls within the generic category of concrete. Water Issues As noted above, if a material is classified as clean debris, it may be deposited into an area prone to flooding or in a natural or artificial body of water, including groundwater (subject, of course, to other unrelated requirements or safeguards). There is no evidence that the filling occurred in a "natural or artificial water body," or directly into the groundwater. In addition, the evidence demonstrates that in October 2001, the ground next to the filled area had small pockets of standing water measuring no more than a few inches deep. However, when the inspection was made, and the photographs taken, Polk County was experiencing rather heavy rainfall, presumably due to the El Nino phenomenon. Whether these conditions (pockets of standing water) exist on the property only during the rainy season is not of record. Further, prior to the filling, Mr. Stanton contacted both the Southwest Florida Water Management District and the United States Geodetic Survey and he asserted, without contradiction, that neither agency indicated that his property was prone to flooding. In any event, even assuming that the area is subject to "frequent and periodic flooding," the permit requirements or other necessary safeguards, if any, associated with filling clean debris in such an area are not the subject of this proceeding. Investigative Costs A Department representative spent 66 hours investigating this matter for the Department. At a then-hourly rate of $18.54, this totals $1,223.64 in investigative costs. The reasonableness of this amount was not disputed by Respondents.
The Issue The issues to be considered in this Recommended Order relate to an Administrative Complaint which the Petitioner filed against Respondent. In particular, the Administrative Complaint calls for the revocation of Respondent's certificate to conduct laboratory analyses for various microbiological parameters, select chemical tests and turbidity studies. This disciplinary action is in keeping with the State Public Water Laboratory Certification Program, Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, which relates to that same subject. These alleged violations are set forth in the Administrative Complaint and those allegations are further refined through the attachments to the Administrative Complaint. They deal with certain alleged failures on the part of the Respondent in performing tests, analyses, recording functions, provision of materials, tabulations, and retention of records. He is also accused of making false statements through documents dealing with certification. All of these acts are in violation of provisions of Chapter 10D-41, Florida Administrative Code, according to the complaint. (The details of the Administrative Complaint are discussed in the Conclusions of Law section of this Recommended Order.) WITNESSES AND EXHIBITS The list of witnesses, in order of their appearance, may be found in the index to transcript. The list of exhibits, page of their identification and receipt may be found in the index to transcript, with the exception of those exhibits upon which ruling on their admissibility was reserved. Those exhibits which were not admitted in the course of the hearing are discussed in the Conclusions of Law section of this Recommended Order.
Findings Of Fact In keeping with language in Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, Petitioner licensed Kamran Kahjeh- Noori, who does business as as Kahjeh-Noori Laboratory. The licensing was through a process of certification to allow Kahjeh-Noori to conduct water testing. In particular, the laboratory was certified in microbiology (membrane filters); microbiology (most probable number); chemistry, and those materials, arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver; chemistry (nitrates); chemistry (fluorides) and turbidity. Water testing laboratories test drinking water from community and non- community water distribution systems. At times relevant to this case, Respondent's laboratory performed microbiological and chemical tests of drinking water. On October 13, 1981, Petitioner filed an Administrative Complaint against the Respondent charging various violations related to Respondent's certification. The Respondent requested a Subsection 120.57(1), Florida Statutes, hearing and that hearing was conducted on August 11, 1982. In connection with the aforementioned certification in the various categories which Respondent had applied for and been granted, Petitioner, through its employees, conducted surveys of the Kahjeh-Noori Laboratory on December 12, 1979; December 8, 1980, February 10 and 11, 1981, and June 9, 1981, to insure compliance with rules related to Respondent's certification. The inspection on December 12, 1979, revealed that the inhibitory residue test as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, had not been performed to demonstrate that the washing/rinsing processes provide glass free of toxic materials. This relates to microbiology. Respondent was made aware of this deficiency in writing and in responding to the statement of deficiencies, indicated that correction had been made or as Respondent stated that the correction had been "performed." A survey conducted by the Petitioner on December 8, 1980, revealed the same problem with the inhibitory residue test as had been described in the matters related to the December 12, 1979, visit, in that that test had not been performed in accordance with Rule 10D-41.55(6)(b)8., Florida Administrative Code. Respondent was again advised in writing of the deficiencies and in response to the deficiencies indicated that a correction had been "performed" on January 8, 1981. This response, as was the case in the December 12, 1979, incident, was a written response. A further survey was conducted on February 10 and 11, 1981, in which the laboratory was inspected and the problem with the inhibitory residue test, in that it was not performed, was discovered in the course of this inspection, again related to Rule 10D-41.55(6)(b)8., Florida Administrative Code. This statement of deficiencies or violation was made known in writing and in his written response, Respondent indicated "media have been ordered from FIFFCO and will be completed by week of 4/20/81." Finally, in an inspection on June 9, 1981, the problem with the inhibitory residue test, that is to say the fact that that test was not being performed to demonstrate that the washing/rinsing processes were providing glassware free of toxic material as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, was still observed in the inspection. The inhibitory residue test, which is designed to determine whether the washing of glassware is leaving residue on that container which might inhibit or enhance bacterial growth, was conducted subsequent to the last survey. In particular, it was conducted on June 17, 1981, and February 25, 1982, by an employee of the Respondent. The results of those tests may be found as Respondent's Exhibit Nos. 1 and 2. In the inspection of December 12, 1979, it was discovered by Petitioner that laboratory pure water had not been analyzed annually by the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code (microbiology). Respondent was made aware of this shortcoming by written notification and in replying to this deficiency, indicated that the matter had been "performed." Further inspection of the matter of laboratory pure water in the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code, was made during December 8, 1980, and a written notification was given to Respondent, indicating that this test had not been performed and requiring an explanation of that deficiency. In responding to the deficiency, Respondent indicated that it "had been analyzed only 2 parameters missing" and the date stated for the completion of that correction was January, 1981. The inspection of February 10 and 11, 1981, discovered the same difficulty on the topic of laboratory pure water, in that the water was found not to have been analyzed on an annual basis by the test for bacteriological properties as required by Rule 10D-41.55(6)(a)4., Florida Administrative Code. This violation or problem was made known to the Respondent by written communication and replying to the deficiencies, in writing, Respondent indicated that "water will be analyzed by end of April." The June 9, 1981, survey by the Petitioner of the Respondent's laboratory, established the same problem with testing related to laboratory pure water under the terms of Rule 10D-41.55(6)(a)4., Florida Administrative Code. Again written notification was made of this shortcoming. Subsequent to the inspection of June 9, 1981, and specifically on June 17, 1981, an employee of Respondent made the test required by Rule 10D- 41.55(6)(a)4., Florida Administrative Code, and the results of that test may be found in Respondent's Exhibit No. 2. The water tested was that water which had been used in the Respondent's laboratory as far back as May, 1981, the date of the initial employment of the employee conducting this test. The conclusion reached was that the water did not contain toxic substances. The survey of December 12, 1979, revealed that laboratory pure water had not been analyzed monthly for conductance, pH, chlorine residual and standard plate count as specified by Rule 10D-41.55(6)(a)5., Florida Administrative Code (microbiology). Surveys by the Petitioner of Respondent's laboratory conducted on December 8, 1980; February 10 and 11, 1981, and June 9, 1981, concerning Rule 10D-41.55(6)(a)5., Florida Administrative Code, revealed the same shortcomings on the matter of monthly analysis for conductance, pH, chlorine residual and standard plate count. The responses made to the written notification of the problems, which notification occurred following each survey, were the same as were related in the responses for violations of Rule 10D- 41.55(6)(a)4., Florida Administrative Code, discussed above. The inspection of Respondent's laboratory, by Petitioner's employee, which occurred on December 8, 1980, revealed that sample bottles were not being tested with lauryl tryptose broth as required by Rule 10D-41.55(6)(b)9., Florida Administrative Code (microbiology). This problem was announced to Respondent in writing. By written response, the Respondent indicated that this matter was "performed" on January 8, 1981. Further inspection of February 10 and 11, 1981, as conducted by Petitioner on Respondent's laboratory, revealed a lack of compliance with the rule related to testing of sample bottles with lauryl tryptose broth as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code. This deficiency was made known in writing from Petitioner to Respondent and in answering this shortcoming, Respondent indicated in writing that the matter was "completed," effective February 17, 1981. In the period beginning late December, 1980, through late May, 1981, some tests related to sample bottles by the lauryl tryptose broth technique were carried out by one of Respondent's employees; however, no record was kept. In the absence of that record, it was reported in the evaluation report of the June 9, 1981, survey, which report was made by Petitioner's employee, that the matter related to testing sample bottles with lauryl tryptose broth, as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code, was still a problem. Beginning June 13, 1981, written records were kept of bottles tested with lauryl tryptose broth, as may be seen through Respondent's Exhibit No. 4a, which is a record of those tests. That record reveals no growth of bacteria. The February 10 and 11, 1981, survey conducted by Petitioner's employee, revealed that Respondent's laboratory was not recording the time of water sample arrivals as specified by Rule 10D-41.55(5)(a)7., Florida Administrative Code (microbiology). This violation was made known to the Respondent in writing and in his written reply, Respondent indicated that the matter was being "performed" effective February 12, 1981. The inspection of June 9, 1981, conducted by Petitioner's employee found that Respondent and his laboratory personnel were still failing to record the time of sample arrival, as required by Rule 10D-41.55(5)(a)7., Florida Administrative Code. Petitioner had contended that Respondent, in his equipment, i.e., sample bottles with screw caps, had liners to those caps that could not withstand repeated sterilizations as required by Rule 10D-41.55(5)(a)6., Florida Administrative Code (microbiology). This notice of violation was made in the course of the June 9, 1981, survey conducted by Petitioner at Respondent's laboratory. The facts when considered do not reveal such a violation or problem. Moreover, the Respondent's laboratory used "whirlpacks" for purposes of collecting drinking water samples and that had been its process beginning June, 1980. During the June 9, 1981, survey, Petitioner discovered that the Respondent, in his laboratory operation, was not carrying out water sample incubations at 350 degrees Celsius +/- 0.5 degrees Celsius. This discovery in the June 9, 1951, survey is borne out by the record of temperature controls made by the Respondent in a period of April, May and June, 1981, prior to the inspection, and also following the inspection in June through December, 1981, Respondent's Exhibit Nos. 5a-c. This allegedly violates Standard Methods, 14th Edition, pages 916, 917, 918 and 931, and thereby contravenes Rule 10D- 41.55(4)(a), Florida Administrative Code (microbiology). Respondent admits that he had this text during pertinent times; however, this volume was not provided to the Hearing Officer. The inspection of December 8, 1980, conducted by Petitioner's employee, revealed that the Respondent, in his laboratory operation, was not using quality control charts or a tabulation of mean and standard deviation to document data validity of silver and nitrate analyses as required by Rule 10D- 41.56(5)(1), Florida Administrative Code (chemistry). This problem was made known to the Respondent in writing and in answering the deficiencies Respondent indicated that the matter had been "performed" effective January 8, 1981. During the course of the February 10 and 11, 1981, inspection, the same problem was observed with the quality control charts on the topic of tabulation of mean and standard deviation set forth in Rule 10D-41.56(5)(1), Florida Administrative Code. In response to this written notification of violation, Respondent replied in writing "corrected and copy was mailed 2/20/81" and indicated a completion date of 2/18/81. Although certain charts had been received by the Petitioner prior to the June 9, 1981, survey (Petitioner's Exhibit No. 9c), that survey still revealed that quality control charts on silver and nitrate analyses as required by Rule 10D-41.56(5)(1), Florida Administrative Code, were missing. Respondent ultimately submitted charts on silver and nitrate, Respondent's Exhibit Nos. 10 through 13. Those exhibits from the Respondent are flawed in that the measurements of precision and accuracy related to the chemical substances are identical and that degree of exactitude makes the results unreliable. (Accuracy describes whether an average of a group of identical samples represents a true value of those samples and precision describes whether the individual test results of several identical samples are similar.) In the June 9, 1981, survey, it was discovered that the raw data and calculations related to quality control charts for the substances arsenic, barium, cadmium, chromium, lead, mercury, selenium and fluoride analyses had not been retained by Respondent's laboratory as specified by Rule 10D-41.59(1)(f)2., Florida Administrative Code. Respondent has made statements in answering stated deficiencies found in paragraphs 5a through 5h of the Administrative Complaint which did not prove to be accurate. These circumstances are reported in the findings of fact related above. Tests of sample bottles performed using lauryl tryptose broth during the period late December, 1980, through May, 1981, were not always recorded as specified by Rule 10D-41.59, Florida Administrative Code, in that on some occasions no record was made of the test.
