Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Several years prior to1978, petitioner General Development Corporation (GDC) applied to the DER for a dredge and fill permit to remove a plug of land between the Ocean Breeze Waterway and the North Fork of the St. Lucie River. During the course of negotiations for this permit, it was discovered that the North Port St. Lucie Sewage Treatment Plant, owned and operated by General Development Utilities, Inc., a wholly-owned subsidiary of the petitioner, was operating without a permit from the DER and discharging effluent into a ditch which flowed into the Ocean Breeze Waterway. In March of 1978, a temporary operating permit was issued for the sewage treatment plant. In July of 1978, petitioner received from the DER Permit No. 253.123- 1031 to dredge an area approximately 800 feet in length, 90 feet in width and 6 feet in depth in order to connect the Ocean Breeze/Sagamore Waterways to the dead end oxbow of the North Fork of the St. Lucie River. The permit application was given special consideration pursuant to Rule 17-4.28(7), Florida Administrative Code. The purpose for obtaining the permit was to create direct navigable access to the North Fork of the St. Lucie River from thee Ocean Breeze Waterway. The Ocean Breeze Waterway was and is currently connected to the North Fork of the St. Lucie River by a narrow, shallow, meandering creek and lake system. However, there is not a large enough opening to allow the type of navigable access desired by the petitioner for the benefit of 118 lots plotted along the Ocean Breeze and Sagamore Waterways. Among the seven particular or special conditions attached to the dredge and fill permit issued to petitioner was that the earthen plug not be removed until such time as a permanent operational permit was issued for the sewage treatment plant owned and operated by General Development Utilities, Inc. More specifically, petitioner agreed to the following special conditions to the issuance of the dredge and fill permit: "(7) The applicant is aware that the GDC Utilities' sewage plant is providing an unknown quantity of discharge into Ocean Breeze Waterway and that this discharge may be a source of pollution to the receiving body of water unless affirmative steps are taken by the Utilities. The sewage treatment plant is currently operating under a Temporary Operating Permit (TP56-4601). In no case shall the plug at Cove Waterway be removed before an Operation Permit for the STP has been issued by the Department of Environmental Regulation." At time of issuance of the dredge and fill permit, DER personnel considered the quoted special condition number 7 to an integral part of the permit in terms of water quality assurances. General Development Utilities, Inc. has not been able to obtain a permanent operational permit from the DER for its sewage treatment plant which discharges into a ditch that flows into the Ocean Breeze Waterway. Therefore, particular condition number 7 has not been satisfied and petitioner has been unable to proceed with the dredging or removing of the plug under the permit. As a result of the delays in removal of the plug, petitioner has had to repurchase some 41 of the 118 plotted lots. The sewage treatment plant was and is still operating under a temporary permit. General Development Utilities, Inc. has requested a permanent operational permit for the sewage treatment plant and DER has issued a letter of intent to deny such a permit. As a result, General Development Utilities has petitioned DER for site specific alternative criteria pursuant to Rule 17-3.031, Florida Administrative Code. This matter is the subject of a separate proceeding currently being held in abeyance pending a determination of alternative criteria. General Development Utilities, Inc. v. Department of Environmental Regulation, DOAH Case No. 81-177. In September of 1980, petitioner sent a letter to DER requesting that special condition number seven be removed from its dredge and fill Permit No. 253.123-1031. It was intended that this request be considered as a minor modification to the dredge and fill permit. In response, DER's Chief of the Bureau of Permitting, Suzanne P. Walker, informed petitioner by letter dated October 15, 1980, that it was the staff's initial reaction, after a review of the original dredge and fill permit file, that the requirement that the sewage treatment plant obtain a permanent operational permit prior to dredging remain as a condition of the dredge and fill permit. Petitioner was informed that if it wished to pursue the matter further, the project must be reevaluated as a major modification to the dredge and fill permit. A major modification to a permit requires a new permit application and fee and is treated and processed as an initial application for a permit, with the applicant being required to provide reasonable assurances that the water quality standards will not be violated. Upon request for a minor modification, DER simply reviews the file and determines whether the request is obviously environmentally insignificant. After receipt of the letter from Mrs. Walker, petitioner supplied DER with additional water quality data. Based upon this additional data, discussions with DER staff who had been involved with the initial dredge and fill permit and the sewage treatment plant permit, and two days of sampling data collected by DER, DER determined that particular condition number seven was an integral part of the affirmative reasonable water quality assurance provided and should remain a condition of the permit. This determination was communicated to petitioner by letter dated January 7, 1981. The sewage treatment plant discharges treated effluent into a drainage ditch known as C-108. Effluent from the plant first goes into holding or retention ponds. Under its current flow, it takes about forty days for the effluent to be discharged from the plant to C-108 and the Ocean Breeze Waterway. C-108 flows into the Ocean Breeze Waterway, an artificial waterway which is presently connected to the North Fork of the St. Lucie River by a narrow, shallow meandering creek and lake system. The sewage treatment plant currently operates at 300,000 gallons per day but has an authorized capacity to operate at two million gallons per day. It currently contributes approximately two percent of the total daily flow to C-108. The Ocean Breeze Waterway and C-108, independent of the sewage treatment plant, drain approximately 4,000 square acres and produce about 35 percent of the water that will flow into the North Fork. The North Fork is tidal, with four one foot tides per day. The tidal action comprises almost 63 percent of the moving water. At a two million gallons per day discharge, the wastewater plant would be contributing about 12 percent of the water that would be going into the North Fork from the Ocean Breeze Waterway system. In comparison with two adjacent drainage systems, the Ocean Breeze system contributes only about three percent of the fresh water which flows into the North Fork. The dissolved oxygen levels of C-108 are chacteristically below the state standard of five milligrams per liter, primarily due to the seepage of ground water into the canal. Due to man-made alterations and to natural phenomena, the North Fork's dissolved oxygen levels also characteristically fall below state standards. The dissolved oxygen level of the Ocean Breeze Waterway is characteristically above state standards. Higher levels of dissolved oxygen coming from the sewage treatment plant improves the dissolved oxygen levels of the existing system. High levels of nitrogen, phosphate and chlorophyll have been found near the point of discharge. The quality of water in the North Fork is better than in the Ocean Breeze Waterway. It was the opinion of petitioner's experts that no change in dissolved oxygen levels would occur in the Ocean Breeze Waterway or the North Fork if the plug of land between these water bodies were removed. Petitioner's witnesses also opined that the Ocean Breeze/C-108 system was not a source of nutrient enrichment to the North Fork, and that the present creek system provided no water quality benefits in the form of nutrient uptake for the North Fork. It was estimated that, if the plug of land were removed pursuant to the permit, a pollutant placed at the upper end of the Ocean Breeze Waterway would be diluted by 98 percent in 26 hours in lieu of the present 39 hours due to increased flushing. These opinions were based upon analyses by petitioner's witnesses of various samplings and data regarding dissolved oxygen, nutrients and phytoplankton. The respondent's witnesses felt that the poor water quality in the Ocean Breeze Waterway was attributable in large part to the sewage treatment plant discharge and, if the plug of land were removed, the water quality problems would be moved to the North Fork and the St. Lucie River. It was felt that the present creek and lake system -- the narrow circuitous connection presently existing between the canal and the river -- reduces the nutrients which otherwise would flow into the river. These conclusions were based upon DER's own survey, a review of the dredge and fill permit file and a review of the additional data supplied by the petitioner General Development Corporation. No data regarding the water quality of the effluent from the sewage treatment plant was submitted by the petitioner at the time of DER's review of the original application for the dredge and fill permit.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the request of General Development Corporation to modify Permit Number 253.123-1031 by removing particular condition number seven be DENIED. Respectfully submitted and entered this 14th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1981. COPIES FURNISHED: Valerie Fravel Corporate Counsel General Development Corp. 1111 South Bayshore Drive Miami Florida 33131 Alfred J. Malefatto Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Petitioner should be granted a water pollution operation permit for the Bennett Road Sewage Treatment Facility under Chapter 403, Florida Statutes.
Findings Of Fact Petitioner owns and operates a sewage treatment plant known as the Bennett Road Sewage Treatment Facility in Orlando, Florida. The plant was originally built in the 1950's and its method of treatment has been modified and improved over the years. At the present time, the plant serves about 60 percent of the sewage treatment needs of the city. The sewage is first treated for the removal of biological compounds by means of trickling filters, followed by chemical treatment for removal of BOD, suspended solids, and phosphorus. In the latter process, aluminum sulfate is used, together with a polymer to assist in forming larger particles for more rapid settlement. These processes are followed by final settling, clorination and discharge through an outfall pipe approximately five miles to the Crane Strand Creek and thence to the Little Econlockhatchee River (Little Econ) which meets the Big Econlockhatchee River approximately twelve miles downstream and flows into the St. Johns River twenty- seven miles downstream. About 60 percent of the flow from Crane Strand Creek into the Little Econ is derived from the Bennett Road plant and there is no other significant source of pollutants from the remainder of the discharge. (Testimony of Jewett, Matthes, Petitioner's Composite Exhibits 1,2) In 1973, Respondent's predecessor, the State Department of Air and Water Pollution Control, issued a temporary operation permit to Petitioner, subject to certain conditions, for the Bennett Road plant. The permit was effective until June 1, 1976, "or sooner pursuant to the permittee upgrading his facility to provide 90 percent treatment and obtaining an operation permit in accordance with the rules and regulations of the Department Of Pollution Control." On May 7, 1976, Petitioner submitted an application for an operation permit wherein it was stated that the facility would be abandoned as soon as the Orlando Easterly Regional Facilities were constructed with a new treatment plant to be located in the vicinity of Iron Bridge Road. Respondent's manager of the St. Johns River District advised Petitioner by letter of July 21, 1976, of the Department's intent to deny the application for an operating permit. The reasons given were that (1) available data was insufficient to show sustained secondary treatment as defined in Chapter 403, Florida Statutes, and Chapter 17- 3, Florida Administrative Code; and (2) the facility's discharge caused violation of Section 17-3.09(3), F.A.C. The latter provision establishes one of the criteria for classification of Class III waters and provides generally that the concentration of dissolved oxygen in all such surface waters shall not average less than 5 mg/l in a twenty-four hour period and never less than 4 mg/l. Class III waters are designated in Rule 17-3.09 as "Recreation - propagation and management of fish and wildlife." In its above-mentioned letter, Respondent suggested that the Petitioner apply for a temporary operation permit. Petitioner chose to request an administrative hearing on the proposed denial and did so by petition filed herein on August 5, 1976. At the commencement of the hearing, the parties orally stipulated that Petitioner has been meeting the statutory and regulatory requirements as to secondary treatment so as to warrant withdrawal of Respondent's objection to granting the permit on that ground. The parties also agreed that the only matter remaining in issue is the question of whether Petitioner's discharge violates water quality criteria. (Petitioner's Exhibits 6,7) Petitioner began consideration of the need to replace or expand the Bennett Road plant about 1968. These plans have reached a stage where the Petitioner is now in the process of purchasing land and concluding a planning study required under federal law to construct a regional facility to service the eastern part of Orlando and a few of the northerly communities, including some in Seminole County. Such regionalization of sewage treatment facilities is encouraged by the federal government which provides 75 percent of the funding necessary for construction under Public Law 92-500 . It is anticipated that the proposed facility will be completed in 1980 at which time the Bennett Road plant will cease operations. The regional facility is to be located at Iron Bridge Road and its discharge would flow into the Little Econ several miles downstream of the present Bennett Road discharge. (Testimony of Matthes, Schneider, Petitioner's Composite Exhibit 2) Operation permits have been granted from 1971 to 1976 to a number of sewage treatment plants that will tie-in to the proposed regional facility. These permits were issued even though the discharge of most of the plants did not meet water quality standards. However, practically no secondary treatment plant can meet water quality standards in Central Florida without an extensive mathematical "modeling." These calculations made by Respondent are formulated from surveys of the body of water in question and result in what is termed "a waste load allocation." This term deals with a treatment standard that is computed to ascertain the assimilative capacity of a receiving body of water to take in pollutants from a particular source in order that water quality standards in terms of dissolved oxygen levels may be maintained. The waste load allocation is the standard which the treatment from the source must perform before it can be discharged. None of the above-mentioned plants nor the Bennett Road plant had been provided an assigned waste load allocation at the time of Respondent's adverse action on Petitioner's application. Neither had it been a past requirement of Respondent to require information concerning dissolved oxygen from an applicant in order to issue an operation permit. However, a preliminary survey of the Little Econ had been completed by Respondent by February 1976, and from this, a mathematical model was later computed based on chemical analysis of water samples taken from designated areas in that body of water. In the aforesaid permits that were granted, a clause provided that the plants would have to work with the City of Orlando in resolving discharge problems and cooperate in the achievement of a regional system. Although water quality criteria had not changed in recent years, they had not been enforced because Respondent had had insufficient background water data. At the time Petitioner's permit application was recommended for denial, the primary basis therefor was the fact that the Bennett Road plant had not then reached 90 percent treatment capability over a sustained period. The question of water quality was incidental in view of the fact that that office did not then have the final determination of water quality as evidenced by the intensive survey of the Little Econ and the final math modeling. (Testimony of Jewett, Davenport; Petitioner's Exhibit 4) By interoffice memorandums from the Respondent's Director of the Division of Environmental Permitting to district and subdistrict managers, dated January 28 and April 13, 1976, Subject: Temporary Operating Permits, the said managers were instructed that no operating permits should be issued for any source not achieving secondary treatment of its wastes or not meeting water quality standards. In such cases, only temporary operating permits were to be issued. Further, it was stated in the April 13 memorandum that enforcement action would be initiated against municipal facilities if they were either not achieving 90 percent removal Of BOD and suspended solids or not meeting water quality requirements, and had either (1) not applied for a federal grant, (2) was not following up to ensure receipt of the grant, or (3) had received a federal grant but was not expeditiously accomplishing the grant requirements. It was stipulated at the hearing that the memorandums had not been promulgated as rules by Respondent under Chapter 120, F.S. (Respondent's Exhibits 1, 2, Stipulation) Although the Little Econ is a highly degraded body of water, upstream of the Bennett Road discharge point it has a dissolved oxygen level of over 6 mg/l. After mixture with the Bennett Road discharge, the level drops to about 2 1/2 mg/l. Based upon the intensive survey taken by the Respondent in 1976, it was determined that water quality violations existed below the Bennett Road plant's discharge point but not above that point. It was further determined that the Bennett Road facility was contributing about 89 percent of the oxygen demanding substances in the system. In fact, the dissolved oxygen levels downstream from the Bennett Road discharge reached as low as one milligram per liter at several points. They ranged from that level up to approximately four and one-half milligrams per liter throughout the entire 27 miles of the system. The foregoing was the conclusion of Respondent's environmental specialist based on field data taken on August 30, 1976, at a time of the day when the dissolved oxygen levels would be at their highest. However, the drop in dissolved oxygen level to an even greater extent at certain points occurs in Respondent's mathematical model prediction that does not take into account any discharge from the Bennett Road plant. In fact, in such a "no discharge" situation, Respondent's prediction is that the dissolved oxygen level at points immediately following several control structures in the waters will produce an even greater drop than with the Bennett Road discharge taken into consideration. Although the control structures do not affect the actual oxygen demand on the system, they do increase the residence time of the water and permit substances to settle out. However, when the water flows over the dam, it creates reaeration that increases the oxygen level again. Therefore, although the control structures aggravate the problem, the Bennett Road discharge is in turn further aggravating the situation because some of the pollutants continue downstream. Part of the problem is due to the effect of deposits already on the bottom of the system and it is unknown to what extent they would be eliminated if the Bennett Road facility were taken out of the system. Although it is not anticipated that there would be a great rise in dissolved oxygen levels if the Bennett Road plant discharge were to be discontinued, Respondent's experts are of the opinion that there would be a definite increase in dissolved oxygen levels overall. Further, the field data and model predictions were based on high flow conditions but the 89 percent figure for pollutants from the Bennett Road facility was based on a low flow condition where it would be of more significance. Although the field data showed that at no point in the 27 mile course did the dissolved oxygen level of the water reach state standards of 5.0 milligrams per liter dissolved oxygen for Class III waters, the model prediction with no discharge from the Bennett Road facility shows that the dissolved oxygen level still would not meet state standards under high flow conditions. Under low flow conditions, though, the dissolved oxygen level without discharge from the Bennett Road plant would reach the state standards roughly halfway down the system. High flow conditions are more representative of an average of dissolved oxygen level during the year than under low flow conditions. The Bennett Road plant contributes approximately 60 percent of the total water flow reaching the St. Johns River. Even if the plant were to achieve advanced waste treatment standards, it still would not meet water quality standards. No evidence was presented as to the possibility of Petitioner using alternative methods of waste disposal, such as deep well injection, land irrigation, or the use of lakes and ponds. In fact, no discharge from the Bennett Road plant could be such as to raise the entire stream to meet the state requirement of 5.0 milligram per liter dissolved oxygen. (Testimony of Sawicki, Davenport, Armstrong, Horvath, Brown, Petitioner's Composite Exhibit 2, Respondent's Exhibit 3) An interoffice memorandum of Respondent's Grants section, dated October 28, 1976, pointed out that enforcement action had been shown to be a "great motivator in the area of bringing awareness to governmental agencies of their responsibilities in the field of pollution abatement." The memorandum sought compliance investigations of the various governmental entities within the area where the proposed regional sewage treatment system for East Orlando was to be undertaken, with recommendations that enforcement action be taken in the case of any violations of state standards. The memorandum further stated that enforcement action was already underway against the City of Orlando. The author of the memorandum denied that it was an attempt to force Respondent to proceed more vigorously with the regional system. (Testimony of Schneider, Petitioner's Exhibit 5) The Orange County Pollution Control Board requires variances from its rule that no treated effluent shall be discharged into the surface waters of the county. The Bennett Road plant operates under such a variance and at the present time is meeting county standards for sewage treatment. On May 19, 1976, the Orange County Assistant Pollution Control Director advised Respondent that the Bennett Road plant was meeting current state performance requirements and recommended approval of the operation permit. Although the county maintains records of the Little Econ River at various points, it has not used a mathematical model to determine whether the Bennett Road plant causes water quality violations. (Testimony of Sawicki, Petitioner's Exhibit 3)
Recommendation That the application of Petitioner City of Orlando, Florida for a water pollution operation permit for the Bennett Road sewage treatment facility be denied. DONE and ENTERED this 25th day of May, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Circle East Montgomery Building Tallahassee, Florida Gretchen R. H. Vose, Esquire Assistant City Attorney 16 South Magnolia Avenue Post Office Box 793 Orlando, Florida 32802 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION CITY OF ORLANDO, FLORIDA, Petitioner, vs. CASE NO. 76-1573 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether Gar-Con's revised application for a permit to construct a sewage plant, and soakage trenches to dispose of the effluent, should be granted?
Findings Of Fact Eight to ten miles south of Melbourne Beach and 8.3 miles north of Sebastian Inlet, Gar-Con plans to develop a parcel of land stretching west from the Atlantic Ocean, across Highway A1A, to the Indian River. Gar-Con expects to build a motel and residential complex complete with tennis courts, parking garage, water treatment plant and the sewage treatment facility for which a construction permit is sought in these proceedings. The sewage treatment plant would be built on a site 480 feet west of Highway A1A and 90 feet south of Gar-Con's northern property line, at an elevation of 11 or 12 feet above mean sea level. Ocean Way Water and Sewer Association, Inc. is to be organized as a nonprofit corporation to own and operate the wastewater treatment facility. The Public Service Commission, through the director of its water and sewer treatment, has taken the position that the proposed "sewer system will fall within the exemption described in Section 367.022(7), Florida Statutes." DER's Composite Exhibit A. PACKAGE PLANT PROPOSED The facility Gar-Con proposes is designed to treat 100,000 gallons of sewage daily, which is the estimated "total flow" (T. 75) the sanitary engineer who designed the system anticipates from the development. Sewage generated by the development would flow to the plant, through a bar rack designed to remove rags and other large objects, and into aeration tanks where, over a 24 hour period, interaction with air and a biological mass would supply oxygen and cause the formation of biological floccules. The flocculant sewage would then move to a clarifier hopper. During its five hour stay there, solids which were not earlier segregated as the sewage moved over a weir into the clarifier, would be precipitated and removed. The clear, residual liquid would be pumped through one of two sand filters (each of which would also have granular activated carbon and be capable of filtering 100,000 gallons daily) into one of two chlorine contact chambers where a gas chlorinator would introduce chlorine for an hour. Under ordinary circumstances, the chlorinated effluent would then be pumped into one of two soakage trenches. The soakage trenches, each designed for use every other week, are to be gravel-filled ditches covered over first with felt paper, then with compacted fill. The gravel would lie at least one foot beneath the surface of the ground in a space ten feet wide and three feet deep stretching the 940 foot length of each soakage trench. Punctured like sieves, two six-inch PVC pipes would run through the gravel, sweating effluent from their pores. There is also a plan to dig a percolation pond or grassed swale five feet deep, 120 feet long and 80 feet wide near the wastewater treatment plant, which could serve as a receptacle for effluent, in case of "a 1:10 year storm or when the filters are down and/or if soakage trenches would need repair." Gar- Con's Exhibit 2-A. It would hold about 100,000 gallons. The solids caught by the weir, those extracted in the clarifying process, and those recovered from backwashing the filters would serve as catalyst for the aeration process as needed. Excess sludge, about 3,000 pounds monthly, would undergo "aerobic digestion," before being removed to Brevard County's Central Disposal Facility on Adamson Road, for disposal there. Gar- Con's Exhibit No. 7. Primary and secondary drinking water standards would be met by the effluent as it left the plant (although the engineer who designed the system would not drink the effluent himself), except that, from time to time, nitrate concentrations might reach 12 milligrams per liter, and except in the "event that a homeowner might put some type of [inorganic toxic or carcinogenic] material into the sewer system." (T. 86) The biological oxygen demand (BOD) would be ten milligrams per liter; suspended solids would probably amount to about five milligrams per liter; pH would probably be slightly under seven; nitrates would average approximately eight milligrams per liter but would "peak out at certain times during the year, for maybe extended periods up to two months, at twelve milligrams per liter," (T. 80); and there would be a chlorine residual after 60 minutes of two milligrams per liter. AMBIENT WATERS There would be no direct discharge to the Atlantic Ocean, Indian River or any other body of surface water, nor would any indirect effect on surface waters be measurable. No body of surface water lies within 500 feet of the site proposed for the plant and soakage trenches. Potable groundwater underlies the site; the groundwater table slopes toward the Atlantic Ocean, 9.5 to 12.5 feet below ground. "[D]uring the traditional rainy season," Gar-Con's Exhibit 2B, Attachment, p.3, the groundwater may rise to within seven feet of the surface. The PVC pipes in the soakage trenches are to be placed two and a half feet deep. As effluent percolated through the sandy soil, there would be "mounding" of the groundwater underneath the soakage trenches, and dispersal in all directions. Surface flow is to be diverted from the soakace trenches so that only rainwater falling directly on them would percolate down through the gravel beds. Taking soil characteristics into account, and assuming a "water table depth" of 20 feet, an engineer retained by Gar-Con predicted that "the maximum expected groundwater rises beneath the east and west trenches are 2.4 and 2.1 feet, respectively under a loading of 100,000 gpd for a period of 7 days." Gar-Con's Exhibit No. 3. The water table depth, "the height, the top of the groundwater from the first restrictive layer," (T. 172), is probably more like 40 feet than 20, which accounts in part for the "conservatism" of the mounding predictions. Under very severe weather conditions (a 100 year storm), groundwater would rise as high as the bottom of the trenches making them unavailable to receive effluent, but the effluent would not be forced above ground. In a 100 year flood, water would be expected to rise to seven feet above mean sea level. Under such conditions, people could be expected to evacuate the area. In a 25 year storm, the system could be expected to continue to function. Groundwater to the north and east of the proposed site was sampled, and the samples were analyzed. The water to the north had 380 milligrams of chlorides per liter and the water to the east had 450 milligrams of chlorides per liter. As it left the proposed treatment plant, the effluent would contain approximately 150 milligrams of chlorides per liter. SOUND AND LIGHT Lights like those used as street lights are to be installed at four places in the wastewater treatment plant. A timer, which can be overridden, would turn the lights on at dusk and off at eleven o'clock at night. The lights would illuminate the plant adequately. Pumps would move sewage to and through the proposed plant. Most of the pump motors would be submerged and unable to be heard. Two electric blowers, a flow meter and a totalizer would also have electrical motors. The blowers and the blower motors are to be equipped with insulated fiberglass covers and the blowers would also have intake and double outlet silencers. Four feet from the plant the noise of the motors would be comparable to that of a home air conditioning unit. At the nearest residence the noise level would scarcely exceed background noise. At hearing, Gar-Con revised its application and agreed to install an emergency generator which would also be encased in insulated housing and is to be equipped with a muffler. AEROSOL AND ODOR Unless the proposed plant loses electric power for 24 hours or longer, no offensive odors would emanate from it. The bar rack and weirs would be regularly hosed down. Against the possibility of a power failure, Gar-Con agreed at hearing to install permanently an emergency generator with sufficient capacity to keep both the wastewater treatment plant and the water treatment plant it plans to build operable. No aerosol drift is foreseen. The surface of the liquid In the aeration tanks would be 1.4 feet below the top of the rim. Walkways four feet wide along the inside perimeters of the aeration holding tanks would prevent dispersal of most of aerosol. A decorative hedge around the treatment plant, which would eventually be 15 feet high, is a final fail-safe. WELLS To the north are two shallow wells within 500 feet of the site proposed for the wastewater treatment plant. Both wells belong to Kel Fox, who wrote Gar-Con that he had no objection to their proposed wastewater treatment facility in light of Gar-Con's agreement to furnish drinking water to existing facilities on his property and reimburse him expenses incurred in disconnecting the two shallow wells. Gar-Con's Exhibit 2E. There is a deep well within 500 feet to the south. DER and Gar-Con have entered into the following stipulation, dated September 2, 1983: Existing Wells. Prior to the operation of its waste water treatment plant, Gar-Con will offer to supply drinking water at a reasonable cost to owners of property on which are located operational or approved shallow drinking water wells that are within 500 feet of Gar-Con's land application site. Gar-Con will make this offer to all such owners known to it prior to the operation of its plant. Gar-Con will further offer to provide reasonable compensation to such owners to disconnect their shallow wells. Gar-Con will endeavor to arrange for provision of drinking water to these owners and the disconnection of those wells prior to the operation of its plant. Future Wells. Should nearby individual (non-corporate) property owners propose to construct shallow drinking wells located within 500 feet of Gar-Con's land application site after Gar-Con begins operation of its waste water treatment plant, Gar-Con also will offer to supply them with drinking water at a reasonable cost and to provide reasonable compensation to them to disconnect those wells. However, Gar-Con shall have no obligation to make any such offer to owners of future wells if sampling of monitoring wells located at or near its external property line indicates that the groundwater meets the primary drinking water standards and, after July 1, 1985, the secondary drinking water standards listed in Florida Administrative Code Rule 17-22.104. Gar-Con agrees to record a master notice of restriction barring future owners of lots within the Ocean Way development, which are owned by Car-Con at the time of permit issuance, from installing shallow drinking water wells on such property or otherwise using the shallow aquifer beneath their property as a source for irrigation or for potable water, so long as use of the proposed sewage disposal system continues, and the Department has not found that this restriction is unnecessary. This restriction, which shall be a covenant running with the land, further shall require future owners to purchase water from Gar-Con or any successor owner of the development's water system if Gar-Con or the successor provides water service. These restrictions also shall be contained in all other appropriate documents of title. In addition, Gar-Con plans to create a non-profit water and sewer association to own and control the development's water and sewer system. Gar-Con will include in the Articles of Incorporation of this association a requirement that all property owners served by the system must be members of the Association. Gar-Con is entitled to a zone of discharge extending to its current property line with the exception that the zone of discharge shall not include the area contained within a 100' radius of Gar-Cons's proposed water supply wells. DER Staff concurs that the above conditions, in conjunction with the sewage treatment and disposal system and the groundwater monitoring program proposed by the applicant, to meet the requirements of Chapter 17-4, F.A.C. will provide reasonable assurance that existing and future off-site and on-site property owners will be protected from any adverse effects that might result from the operation of the proposed sewage treatment disposal system. Petitioner's Exhibit No. 10. There are to be a half dozen monitoring wells to allow sampling of the groundwater at strategic points in the shallow aquifer. NATURAL RESOURCES Turtles nest in the general vicinity but off the site of the proposed project. Construction and operation of the proposed waste water treatment facility would have no impact on the turtles apart from making it possible for more people to live closer to where they nest.
The Issue The issues are: (1.) Whether Respondents' request for variance from requirements of Rule Chapter 10D-6, Florida Administrative Code, should be granted. (2.) Whether Respondents are guilty of violation of certain provisions of Chapter 381 and Chapter 403, Florida Statutes, and Rule Chapter 10D-6, Rule Chapter 17-550, and Rule Chapter 17-555, Florida Administrative Code, regulating the operation of onsite sewage disposal systems.
Findings Of Fact Respondent V.M.P. Corporation (VMP) operates a lounge known as Stud's Pub in Jacksonville, Florida. Licensed for 75 seats, the lounge actually contains 50-55 seats and employs five people full time. Additionally, 10-15 independent entrepreneurs known as dancers may be present at times. The dancers are not employees of Respondents. Less than 25 people, other than patrons, are present at the facility at any time. Respondent Vincent M. Paul (Paul) owns the facility and the corporation. The lounge is on lots that were platted prior to 1972. Petitioner is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Petitioner pursuant to provisions of Section 381.0065(8)(a), Florida Statutes (1991). The lounge is serviced by a septic tank with a drainfield which is covered by an asphalt parking lot. The portion of the parking lot over the drainfield is bounded to the west by a dirt city street, to the north by other pervious surfaces, to the east by the lounge and to the south by the remainder of the asphalt parking lot. A sign on the premises which advertises the business is protected from automobile traffic by concrete barriers. The septic tank system and drainfield were installed prior to 1972 by a previous owner. Respondent Paul retrofitted the septic tank system after 1972. Respondent Paul was responsible for paving over the drainfield after he purchased the property. Petitioner's representatives inspected the lounge, determined the drainfield to be covered by the asphalt parking lot and requested Respondents to remove the asphalt covering. Respondents requested a variance pursuant to Rule 10D Administrative Code, for the asphalt covered drainfield and other deficiencies of the onsite sewage disposal system. Petitioner's review board recommended denial of the request on the basis that the variance would not constitute a "minor deviation" from rule requirements. Although the term is not defined by Petitioner's rule, Petitioner's usage of this term was the result of the consideration by Petitioner's review board of the application for variance within the context of Section 385.0065(8)(a), Florida Statutes, which authorizes Petitioner to grant variances only where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated. Respondent has no record of failure of the septic tank or drainfield. Water samples from the onsite potable water well filed with Petitioner tested below detectable limits for nitrates and coliforms, the only parameters Petitioner is required to analyze. Respondents' records of water flow or usage from the well into the lounge show daily flow rates of between 320 and 580 gallons, with an average rate of between 450 and 480 gallons. Respondent Paul is responsible for the installation of an unpermitted chlorinator on the water supply system which provided actual flow information. The only onsite water well has no grout sealant. It is the only well of which the parties are aware that lies within 100 feet of the septic system. The potable water well is located approximately 42 feet from the edge of the covered drainfield. The well head does not extend above line surface and there is no concrete pad around the wellhead. The exact depth of the well is unknown, although the well is located upgradient of the drainfield and a nearby junkyard. Denial of the variance would require that Respondents uncover the drainfield since there is no practically available offsite sewage system currently available. Soil in the area of the drainfield is classified as well- draining sand. Due to the impervious surface covering the drainfield, Petitioner's representative was unable, during his inspection, to discern any symptoms of drainfield failure in the form of "blow field should be totally unobstructed to allow aerobic processes to take place in the drainfield which will permit the breakdown of contaminants. A portion of Respondents' 1200 gallon septic tank is located partially under and immediately adjacent to Respondents' facility. A dousing tank which retains liquid waste and operates as part of the septic system is also totally covered by the asphalt pavement. Although there has been no detectable failure of the system, every eight or nine months Respondents have the septic tank and dousing tank pumped out. The tanks never get full.
Recommendation Based on the foregoing, it is hereby Recommended that a final order be entered by Petitioner denying the variance requested by Respondent with exception of such minimal distance as may be required to relocate the water well as far as possible from the drainfield on the Respondent property, and, Further Recommended that such final order also assess Respondent Paul an administrative penalty of $500 for each of the four violations contained in the Administrative Complaint which were proven in this proceeding for a total of $2000, and a continuing assessment of $500 per day for each violation for a total of up to $2000 per day after first allowing Respondents a 60 day period within which to correct all four violations. DONE AND ENTERED this 3rd day of May, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 3rd day of May, 1993.
The Issue The issues for determination in this case are whether Respondent Jeffrey Hill should pay the administrative penalty and investigative costs, and should undertake the corrective actions that are demanded by the Florida Department of Environmental Protection (“Department”) in its Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment (“NOV”).
Findings Of Fact Respondent is the owner and operator of a community water system and its associated piping, designated PWS No. 2124409, located on parcel ID No. 03-4S-17-07486-001 on Country Club Road, in Lake City, Columbia County, Florida (“the property”). Respondent is a “person” as defined in section 403.852(5), Florida Statutes. Respondent is a “supplier of water” as defined in section 403.852(8). The water system is a “public water system” and a “community water system” as defined in sections 403.852(2) and (3), respectively. The community water system is a Category V, Class D water system with a capacity of 28,800 gallons per day that supplies between 25 and 3,300 people, using groundwater as its source. Count I Count I of the NOV charges Respondent with failure to sample for nitrate and nitrite in 2012 and 2013, which was admitted by Respondent. Count II Count II of the NOV charges Respondent with failure to sample for primary inorganic contaminants for the 2011-2013 compliance period, which was admitted by Respondent. Count III Count III of the NOV charges Respondent with failure to analyze for secondary contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count IV Count IV of the NOV charges Respondent with failure to sample for volatile organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count V Count V of the NOV charges Respondent with failure to sample for synthetic organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count VI Count VI of the NOV charges Respondent with failure to sample for total coliform from June 2013 to date, which was admitted by Respondent. Count VII Count VII of the NOV charges Respondent with failure to employ an operator for the system since May 2013, which was admitted by Respondent. Count VIII Count VIII of the NOV charges Respondent with failure to submit test results required by Florida Administrative Code Chapter 62-550, and failure to file a monthly operation report since April 2013, which was admitted by Respondent. Count IX Count IX of the NOV charges Respondent with failure to issue Tier 3 notices in May 2013 and March 2014, advising customers of the failure to monitor for certain contaminants, which Respondent admitted. Count X Count X of the NOV charges Respondent with failure to provide a consumer confidence report to his customers in 2012 and 2013, which was admitted by Respondent. Count XI In Count XI of the NOV, the Department states that it incurred $530 in investigative costs related to this enforcement matter, which is admitted by Respondent.
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system ("OSDS") permit authorizing installation of an OSDS on property which Petitioner owns near the Suwanee River in Dixie County, Florida, in accordance with Section 8l.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is an owner, by joint tenancy, of real property located in Dixie County, Florida, more particularly described as part of Government Lot 1, Section 4, Township 11 South, Range 13 East; closely proximate to the Suwanee River at a location generally known as "New Pine Landing". The surrounding property is characterized by homes and mobile home,;, which have OSDS's installed and operating. The subject property has no improvements constructed thereon, although the Petitioner intends the placement of a 12X60 foot mobile home, containing two bedrooms and one bathroom. There is no OSDS of any type installed on the property at the present time. The subject property is approximately 18.5 acres in size. It was purchased on January 17, 1990, but the property in question has never been platted. On March 20, 1990, the Petitioner made application for an OSDS permit for the aforesaid property, which was denied by the Respondent's letter of denial dated April 23, 1990. The Petitioner was not afforded the opportunity to pursue an informal variance application through the variance procedure set up by the statute and rules cited hereinbelow. Rather, the Respondent, in its denial letter, indicated that, because of the perceived effect of the Governor's Executive Order, discussed hereinbelow, no variances were being granted and the variance procedure would be "bypassed" in favor of affording the Petitioner a formal administrative hearing before the Division of Administrative Hearings concerning the permit denial. The Petitioner testified generally concerning the character of the property in question and the general nature of the terrain and vegetation. The property is characterized by a wetland or swampy area at one end of the property and, in the area of the proposed installation site, the ground elevation is higher, with a benchmark elevation of 8.8 feet above mean sea level ("MSL"), as established by Herbert H. Raker, certified land surveyor, and depicted by Petitioner's Exhibit 2 in evidence. The Petitioner offered no testimony concerning the ground water levels, other than to say that at one point in time, he dug a three-foot-deep hole on the subject property near the septic tank installation site and observed no water in the hole. His testimony did not indicate at what season of the year the observation was made nor whether conditions were wet or dry at the time. The only concrete evidence concerning ground water level at this installation site was that offered by the Respondent, which indicates that the ground water level at the time of the site evaluation was 42 inches below the surface of the property in question at the proposed installation site and, through observation of "mottling1, of the soil, indicating the presence of dampness, that the wet season water table is 12 inches below the surface of the property. Likewise, the Petitioner professed to have no knowledge of the ten-year flood elevation for the property. The Respondent's evidence, derived from materials submitted by the Petitioner in furtherance of the application, consisting of a report from the Suwanee River Water Management District, establishes that the ten-year flood elevation is 14 feet above MSL for Suwanee River Mile 29, which corresponds to the location of the subject property. The property is also located within the regulatory floodway administered by the Suwanee River Water Management District. Rule 10D-6.047, Florida Administrative Code, mandates that before a mounded system for on-site sewage disposal can be installed, a certification by a registered engineer would be necessary to determine that installation of such a mounded system would not raise the level of the "base flood". No such engineering testimony or evidence has been offered in this proceeding, however. The Petitioner further testified in a general sense that it would be a hardship not to be able to) install the OSDS on the property, given the money paid to purchase the property and the intent by the Petitioner to use it for a residence. The Petitioner has no use for the property without being able to use it for a residence. The Petitioner, however, did not offer any testimony or evidence concerning alternatives to installing the proposed OSDS, nor did the Petitioner establish that installation of such a system or an alternative system would pose no adverse health effects on the Petitioner or members of the general public nor that it would pose no degradation to the surface or ground waters involved for purposes of the Petitioner establishing entitlement to a permit or a variance It should be remembered, however, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances, or permits for OSDS within the ten-year flood elevation. This leads to its advising the Petitioner that to apply for a variance in this instance would be futile. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such system; beneath the ten-year flood elevation was entered on January 17 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit without prejudice to the Petitioner applying for and seeking a variance from the statutory and rule requirements related to permitting, for the reasons found and concluded above; and without prejudice to pursuing an OSDS permit application at a later time should the Petitioner become able to demonstrate that alternative methods of treatment and disposal of the sewage effluent in question can feasibly be performed within the bounds of the standards enunciated in the above-cited statutes and rules concerning on- site sewage disposal permitting. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3120 Respondent's Proposed Findings of Fact: 1-9. Accepted. Petitioner's Proposed Findings of Fact: None filed. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Mary Ann White and Inman White P.O. Box 756 Old Town, Florida 32680 Frances Childers, Esquire Assistant District Legal Counsel HRS District 3 Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to a variance for installation of an on-site sewage disposal system ("OSDS") for property located near the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Dixie County, Florida, more particularly described as Lot 4, Wonderland Subdivision. The property is approximately 60 by 150 feet in size and was purchased in 1982 for a price of $9,000.00. It is presently appraised at $11,000.00; however, if an OSDS could be permitted and installed, the property would appraise for approximately $22,000.00. The lot was platted in 1957. On October 19, 1989, the Petitioner made an application for a variance from the OSDS permit requirements for the property. The application form indicated, and the Petitioner intends, that this would be a new system for a single-family residence. The residence would contain two bedrooms and would produce approximately 250 gallons per day of sewage flow. The Petitioner desires to construct a residence on the property to have a pleasant place to live and is suffering a hardship because of the investment which he has made in the property, which is of no use to him if he cannot obtain the subject permit or variance and install the OSDS so that he can construct his residence. Alternatively, he is unable to sell the property readily without the ability to obtain an OSDS permit or variance for the property. At the behest of the Respondent in the permit application or variance application process, the Petitioner obtained a survey of the property by a registered land surveyor (see Petitioner's Exhibit No. 2 in evidence). That survey resulted in a benchmark elevation being established of 12 feet above mean sea level ("MSL"). The site of the proposed OSDS installation is 11.71 feet above MSL. The ten-year flood plain elevation for this property is 16 feet above MSL, as verified by records of the Suwannee River Water Management District in evidence without objection. The property is also located within the regulatory floodway of the Suwannee River. Although the Petitioner acknowledged in a general way that he would be amenable to consideration of various alternative types of systems involving piping of sewage effluent to an appropriate upland disposal and treatment area, the use of chemical toilets or other appropriate non-discharge types of treatment and disposal systems, no concrete evidence was adduced from the Petitioner to establish that such are or are not reasonable alternatives to the conventional subterranean septic tank and drainfield type of disposal system with which the variance application is concerned. Consequently, the Petitioner's proof does not establish that no reasonable alternatives exist in order to secure the grant of a variance nor did the Petitioner's proof establish that the type of system proposed would not pollute the ground or surface waters or pose a threat to public health in terms of the standard subterranean OSDS or any alternative systems which the Petitioner might theoretically employ, including the types mentioned above. The Petitioner's proof simply did not establish that installation of a standard subterranean OSDS would only pose a minor deviation from the permitting statute and rules cited herein nor did the Petitioner establish that no reasonable alternatives exist to the establishment of a standard OSDS, as that relates to the substantiality of the hardship which the Petitioner is experiencing in not getting the OSDS originally requested permitted; and the Petitioner did not establish that any system proposed would not pose a threat to public health or pollute ground or surface waters. In summary, the Petitioner did not establish that a sufficient hardship is experienced, because reasonable alternatives have not adequately been explored and considered by the Petitioner nor made a part of the subject of Petitioner's proof nor has the Petitioner established that a grant of a variance would involve only a minor deviation from the permitting statute and rules standards because it has not been proven that the public health nor the ground or surface waters would not be adversely affected. Finally, because the property is located in the regulatory floodway of the Suwannee River, under Rule 10D- 6.047(6), Florida Administrative Code, before a mounded or filled OSDS could be permitted and installed, which is one alternative under consideration, a registered professional engineer must certify that the mounding of the system and installation of fill in the regulatory floodway area would not cause elevation of the "base flood" of the Suwannee River. No such engineering evidence or testimony has been adduced iii this proceeding; therefore, such an alternative system cannot herein be recommended for approval.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for a variance from the statutory and regulatory requirements for an OSDS permit. DONE AND ENTERED this 10th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3111 Respondent' Proposed Findings of Fact: All of Respondent's proposed findings of fact are accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Marilou Clark Suwannee Plantation Realty Rt. 3, Box 73 Old Town, FL 32680 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609
The Issue The issues in this case are whether International Paper Company (IP) is entitled to National Pollutant Discharge Elimination System (NPDES) Permit No. FL0002526 issued by Department of Environmental Protection (Department) and whether the Department should approve Consent Order No. 08-0358, for the operation of IP’s paper mill in Cantonment, Escambia County, Florida.
Findings Of Fact The Department is the state agency authorized under Chapter 403, Florida Statutes (2008), to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. Perdido Bay is approximately 28 square miles in area. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. At the north end of Perdido Bay is a large tract of land owned by IP, known as the Rainwater Tract. The northern part of the tract is primarily fresh water wetlands. The southern part is a tidally-affected marsh. The natural features and hydrology of the fresh water wetlands have been substantially altered by agriculture, silviculture, clearing, ditching, and draining. Tee Lake and Wicker Lake are small lakes (approximately 50 acres in total surface area) within the tidal marsh of the Rainwater Tract. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to the lakes from Perdido Bay. Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. In 1989, the Department and Champion signed a Consent Order to address water quality violations in Elevenmile Creek. Pursuant to the Consent Order, Champion commissioned a comprehensive study of the Perdido Bay system that was undertaken by a team of scientists led by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies (“the Livingston studies"). Champion was granted variances from the water quality standards in Elevenmile Creek for iron, specific conductance, zinc, biological integrity, un-ionized ammonia, and dissolved oxygen (DO). In 2001, IP and Champion merged and Champion’s industrial wastewater permit and related authorizations were transferred to IP. In 2002, IP submitted a permit application to upgrade its wastewater treatment plant (WWTP) and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to the Rainwater Tract, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a reduction of biological oxygen demand (BOD) and TSS. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP, along with other process wastewater and become part of the effluent conveyed through the pipeline to the wetland tract. The effluent limits required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based, limiting the amount of pollutants that may be discharged for each ton of product that is produced. The proposed permit also imposes water quality-based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. The Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. A wetland pilot project was constructed in 1990 at the Cantonment mill into which effluent from the mill has been discharged. The flora and fauna of the pilot wetland project have been monitored to evaluate how they are affected by IP’s effluent. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silvicultural activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, it would be re-aerated and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged into the wetland would flow a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a somewhat shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter indicated that the effluent would move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be 0.6 inches. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline, berm, and control structures in the wetland tract, as originally proposed, were permitted by the Department through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. Petitioners did not challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge from Elevenmile Creek to the wetland tract. IP is given two years to complete construction activities and begin operation of the new facilities. At the end of the construction phase, least 25 percent of the effluent is to be diverted to the wetland tract. The volume of effluent diverted to the wetlands is to be increased another 25 percent every three months thereafter. Three years after issuance of the permit, 100 percent of the effluent would be discharged into the wetland tract and there would no longer be a discharge into Elevenmile Creek. The proposed Consent Order establishes interim effluent limits that would apply immediately upon the effective date of the Consent Order and continue during the two-year construction phase when the mill would continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12- month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply when 100 percent of the effluent is discharged into the wetland tract. IP is required by the Consent Order to submit quarterly reports of its progress toward compliance with the required corrective actions and deadlines. Project Changes After the issuance of the Final Order in 05-1609, IP modified its manufacturing process to eliminate the production of white paper. IP now produces brown paper for packaging material and “fluff” pulp used in such products as filters and diapers. IP’s new manufacturing processes uses substantially smaller amounts of bleach and other chemicals that must be treated and discharged. IP reduced its discharge of BOD components, salts that increase the specific conductance of the effluent, adsorbable organic halides, and ammonia. IP also reduced the odor associated with its discharge. In the findings that follow, the portion of the Rainwater Tract into which IP proposes to discharge and distribute its effluent will be referred to as the “effluent distribution system,” which is the term used by Dr. Nutter in his 2008 “White Paper” (IP Exhibit 23). The effluent distribution system includes the berms and other water control structures as well as all of the natural areas over which IP’s effluent will flow to Perdido Bay. Most of the existing ditches, sloughs, and depressions in the effluent distribution system are ephemeral, holding water only after heavy rainfall or during the wet season. Even the more frequently wetted features, other than Tee and Wicker Lakes, intermittently dry out. There is currently little connectivity among the small water bodies that would allow fish and other organisms to move across the site. Fish and other organisms within these water bodies are exposed to wide fluctuations in specific conductivity, pH, and DO. When the water bodies dry out, the minnows and other small fish die. New populations of fish enter these water bodies from Elevenmile Creek during high water conditions, or on the feet of water birds. IP's consultants conducted an extensive investigation and evaluation of animal and plant communities in the Rainwater Tract in coordination with scientists from the Department and the Florida Fish and Wildlife Conservation Commission. Among the habitats that were identified and mapped were some wet prairies, which are designated “S-2," or imperiled, in the Florida Natural Area Inventory. In these wet prairies are rare and endangered pitcher plants. IP modified the design of the proposed effluent distribution system to shorten the upper berms and remove 72.3 acres of S-2 habitat. The total area of the system was reduced from 1,484 acres to 1,381 acres. The proposed land management activities within the effluent distribution system are intended to achieve restoration of historic ecosystems, including the establishment and maintenance of tree species appropriate to the various water depths in the system, and the removal of exotic and invasive plant species. A functional assessment of the existing and projected habitats in the effluent distribution system was performed. The Department concluded that IP’s project would result in a six percent increase in overall wetland functional value within the system. That estimate accounts for the loss of some S-2 habitat, but does not include the benefits associated with IP’s conservation of S-2 habitat and other land forms outside of the effluent distribution system. IP proposes to place in protected conservation status 147 acres of wet prairie, 115 acres of seepage slope, and 72 acres of sand hill lands outside the effluent distribution system. The total area outside of the wetland distribution system that the Consent Order requires IP to perpetually protect and manage as conservation area is 1,188 acres. The Consent Order was modified to incorporate many of the wetland monitoring provisions that had previously been a part of the former experimental use of wetlands authorization. IP proposes to achieve compliance with all proposed water quality standards and permit limits by the end of the schedule established in the Consent Order, including the water quality standards for specific conductance, pH, turbidity, and DO, which IP had previously sought exceptions for pursuant to Florida Administrative Code Rule 62-660.300(1). Limitation of Factual Issues As explained in the Conclusions of Law, the doctrine of collateral estoppel bars the parties in these consolidated cases from re-litigating factual issues that were previously litigated by them in DOAH Case No. 05-1609. The Department’s Final Order of August 8, 2007, determined that IP had provided reasonable assurance that the NPDES permit, Consent Order, exception for the experimental use of wetlands, and variance were in compliance with all applicable statutes and rules, except for the following area: the evidence presented by IP was insufficient to demonstrate that IP’s wastewater effluent would not cause significant adverse impact to the biological community of the wetland tract, including Tee and Wicker Lakes. Following a number of motions and extensive argument on the subject of what factual issues raised by Petitioners are proper for litigation in this new proceeding, an Order was issued on June 2, 2009, that limited the case to two general factual issues: Whether the revised Consent Order and proposed permit are valid with respect to the effects of the proposed discharge on the wetland system, including Tee and Wicker Lakes, and with respect to any modifications to the effluent distribution and treatment functions of the wetland system following the Final Order issued in DOAH Case No. 05- 1609; and Whether the December 2007 report of the Livingston team demonstrates that the WQBELS are inadequate to prevent water quality violations in Perdido Bay. Petitioners’ Disputes Petitioners’ proposed recommended orders include arguments that are barred by collateral estoppel. For example, Jacqueline Lane restates her opinions about physical and chemical processes that would occur if IP’s effluent is discharged into the wetlands, despite the fact that some of these opinions were rejected in DOAH Case No. 05-1609. Dr. Lane believes that IP’s effluent would cause adverse impacts from high water temperatures resulting from color in IP’s effluent. There is already color in the waters of the effluent distribution system under background conditions. The increased amount of shading from the trees that IP is planting in the effluent distribution system would tend to lower water temperatures. Peak summer water temperatures would probably be lowered by the effluent. Petitioners evidence was insufficient to show that the organisms that comprise the biological community of the effluent distribution system cannot tolerate the expected range of temperatures. Dr. Lane also contends that the BOD in IP's effluent would deplete DO in the wetlands and Tee and Wicker Lakes. Her contention, however, is not based on new data about the effluent or changes in the design of the effluent distribution system. There is a natural, wide fluctuation in DO in the wetlands of the effluent distribution system because DO is affected by numerous factors, including temperature, salinity, atmospheric pressure, turbulence, and surface water aeration. There are seasonal changes in DO levels, with higher levels in colder temperatures. There is also a daily cycle of DO, with higher levels occurring during the day and lower levels at night. It is typical for DO levels in wetlands to fall below the Class III water quality standard for DO, which is five milligrams per liter (mg/l). An anaerobic zone in the water column is beneficial for wetland functions. DO levels in the water bodies of the effluent distribution system currently range from a high of 11 to 12 mg/l to a low approaching zero. The principal factor that determines DO concentrations within a wetland is sediment oxygen demand (SOD). SOD refers to the depletion of oxygen from biological responses (respiration) as well as oxidation-reduction reactions within the sediment. The naturally occurring BOD in a wetland is large because of the amount of organic material. The BOD associated with IP’s effluent would be a tiny fraction of the naturally occurring BOD in the effluent distribution system and would be masked by the effect of the SOD. It was estimated that the BOD associated with IP's effluent would represent only about .00000000001 percent of the background BOD, and would have an immeasurable effect. Dr. Pruitt’s testimony about oxygen dynamics in a wetland showed that IP’s effluent should not cause a measurable decrease in DO levels within the effluent distribution system, including Tee and Wicker Lakes. FOPB and James Lane assert that only 200 acres of the effluent distribution system would be inundated by IP’s effluent, so that the alleged assimilation or buffering of the chemical constituents of the effluent would not occur. That assertion misconstrues the record evidence. About 200 acres of the effluent distribution system would be permanently inundated behind the four berms. However, IP proposes to use the entire 1,381-acre system for effluent distribution. The modifications to the berms and the 72-acre reduction in the size of the effluent distribution system would not have a material effect on the assimilative capacity of system. The residence time and travel time of the effluent in the system, for example, would not be materially affected. Variability in topography within the effluent distribution system and in rainfall would affect water depths in the system. The variability in topography, including the creation of some deeper pools, would contribute to plant and animal diversity and overall biological productivity within the system. The pH of the effluent is not expected to change the pH in the effluent distribution system because of natural buffering in the soils. The specific conductance (saltiness) of IP’s effluent is not high enough to adversely affect the biological community in the fresh water wetlands of the effluent distribution system. IP is already close to maintaining compliance with the water quality standard for specific conductance and would be in full compliance by the end of the compliance schedule established in the proposed Consent Order. After the 2007 conversion to brown paper manufacturing, IP’s effluent has shown no toxicity. The effluent has passed the chronic toxicity test, which analyzes the potential for toxicity from the whole effluent, including any toxicity arising from additive or synergistic effects, on sensitive test organisms. Dr. Lane points out that the limits for BOD and TSS in the proposed NPDES permit exceed the limits established by Department rule for discharges of municipal wastewater into wetlands. However, paper mill BOD is more recalcitrant in the environment than municipal wastewater BOD and less “bio- available” in the processes that can lower DO. In addition, the regulatory limits for municipal wastewater are technology-based, representing “secondary treatment.” The secondary treatment technology is not applicable to IP’s wastewater. Sampling in the pilot wetland at the paper mill revealed a diversity of macroinvertebrates, including predator species, and other aquatic organisms. Macroinvertebrates are a good measure of the health of a water body because of their fundamental role in the food web and because they are generally sensitive to pollutants. Petitioners contend that the pilot wetland at the paper mill is not a good model for the effect of the IP’s effluent in the wetland distribution system, primarily because of the small amount of effluent that has been applied to the pilot wetland. Although the utility of the pilot wetland data is diminished in this respect, it is not eliminated. The health of the biological community in the pilot wetland contributes to IP’s demonstration of reasonable assurance that the biological community in the effluent distribution system would not be adversely affected. The effluent would not have a significant effect on the salinity of Tee and Wicker Lakes. Under current conditions, the lakes have a salinity of less than one part per thousand 25 percent of the time, less than 10 parts per thousand 53 percent of the time, and greater than 10 parts per thousand 22 percent of the time. In comparison, marine waters have a salinity of 2.7 parts per thousand. IP’s effluent would not affect the lower end of the salinity range for Tee and Wicker Lakes, and would cause only a minor decrease in the higher range. That minor decrease should not adversely affect the biota in Tee and Wicker Lakes or interfere with their nursery functions. The proposed hydrologic loading rate of the effluent amounts to an average of six-tenths of an inch over the area of effluent distribution system. The addition of IP’s effluent to the wetlands of the effluent distribution system and the creation of permanent pools would allow for permanent fish populations and would increase the opportunity for fish and other organisms to move across the effluent distribution system. Biological diversity and productivity is likely to be increased in the effluent distribution system. By improving fish habitat, the site would attract wading birds and other predatory birds. Although the site would not be open to public use (with the exception of Tee and Wicker Lakes), recreational opportunities could be provided by special permission for guided tours, educational programs, and university research. Even if public access were confined to Tee and Wicker Lakes, that would not be a reduction in public use as compared to the existing situation. IP’s discharge, including its discharges subject to the interim limits established in the Consent Order, would not interfere with the designated uses of the Class III receiving waters, which are the propagation and maintenance of a healthy, well-balanced population of fish and wildlife. The wetlands of the effluent distribution system are the “receiving waters” for IP’s discharge. The proposed project would not be unreasonably destructive to the receiving waters, which would involve a substantial alteration in community structure and function, including the loss of sensitive taxa and their replacement with pollution-tolerant taxa. The proposed WQBELs would maintain the productivity in Tee and Wicker Lakes. There would be no loss of the habitat values or nursery functions of the lakes which are important to recreational and commercial fish species. IP has no reasonable, alternative means of disposing of its wastewater other than by discharging it into waters of the state. IP has demonstrated a need to meet interim limits for a period of time necessary to complete the construction of its alternative waste disposal system. The interim limits and schedule for coming into full compliance with all water quality standards, established in the proposed Consent Order, are reasonable. The proposed project is important and beneficial to the public health, safety, and welfare because (1) economic benefits would accrue to the local and regional economy from the operation of IP’s paper mill, (2) Elevenmile Creek would be set on a course of recovery, (3) the wetlands of the effluent distribution system would become a site of greater biological diversity and productivity, (4) the environmental health of Perdido Bay would be improved, (5) the Department’s decades-long enforcement action against IP would be concluded, (6) substantial areas of important habitat would be set aside for permanent protection, and (7) the effluent distribution system would yield important information on a multitude of scientific topics that were debated by these parties. The proposed project would not adversely affect the conservation of fish or wildlife or their habitats. The proposed project would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. There is no Surface Water Improvement and Management Plan applicable to IP’s proposed discharge. The preponderance of the record evidence establishes reasonable assurance that IP’s proposed project would comply with all applicable laws and that the Consent Order establishes reasonable terms and conditions to resolve the Department’s enforcement action against IP for past violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order granting NPDES Permit No. FL0002526 and approving Consent Order No. 08-0358. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
