Findings Of Fact Application 7500165 requested average withdrawal of water of 1,804,750 gallons per day from 4 wells located about a mile east of Highway 41 and a mile north of Apollo Beach. The four wells would be for irrigation of tomato crops on total acreage of 4 acres located in Hillsborough County (Exhibit 1, Testimony of Elsberry and Boatwright). Notice of hearing as to the application was published in a newspaper of general circulation in accordance with statute and rule (Exhibit 3). A letter of objection from Joseph S. Benham, Apollo Beach, Florida, dated November 19, 1975 was submitted to the Water Management District, wherein he expressed concern regarding water shortages and, although he does not seek to totally deny the application, is of the belief that the district must insure sufficient controls and management of irrigation activities so that resources are not wasted, water runoff to drainage ditches is eliminated and renewed justification is given each year for the withdrawal (Exhibit 2). A representative of the District staff established that there would be no violation of statutory or regulatory requirement for issuance of a consumptive water use permit in this case except as to the fact that potentiometric level of the applicant's property would be lowered below sea level as a result of withdrawal. It was agreed at the hearing that a period of thirty days should be granted both parties to formulate a stipulation as to control of runoff. An unsigned stipulation was received from the Water Management District by the hearing officer on March 1, 1976, which provided that the permit would be granted with the following stipulations: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expense install metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. (Testimony of Boatwright, Exhibit 4).
Recommendation That application 8500165 submitted by Elsberry and Elsberry, Inc. Route 2, Box 70 Ruskin, Florida, for a consumptive water use permit be granted with the conditions as follow: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expenseinstall metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. That the Board grant an exception to the provision of Rule 16J- 2.11(4)(e), F.A.C., for good cause shown. DONE and ENTERED this 15th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Elsberry & Elsberry, Inc. Route 2, Box 70 Ruskin, Florida
The Issue Did Respondents violate the provisions of Rules 62-550.518(3), 62-555.320(4)(8), 62-560.410(2)(c), 62555.350(2), and 62-555.345, Florida Administrative Code, as alleged in the Notice of Violation and Orders for Corrective Action, Case Nos. 96-653PW2442B and 96- 653PW2442C dated June 9, 1997?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, under the authority of an Interagency Agreement with the Department of Environmental Protection, was the agency of the State of Florida charged with the responsibility for inspecting and clearing Public Water Systems in Polk County Florida under Section 403.121, Florida Statutes. SDS Properties Investors Group, Inc. (SDS) is a Florida corporation authorized to do business as Budget Motel. SDS is owned by Shaikh. Sanitary surveys are conducted by the Department every three years and include the inspection of Public Water Systems (PWS) . On January 26, 1996, the Department conducted a routine sanitary survey of Budget Motel (Budget) located at 1418 Highway 17 South, Lake Wales, Florida, which should have included Budget's public water system, PWS 6532442. However, Polk County's inspector, Henry Tagioff, was shown a well, by a Budget employee, that was located on the adjacent property owned by Smokey's Mobile Home Park (Smokey's) and not a part of Budget's water system. Tagioff was not aware that the well he inspected was owned by Smokey's and not on Budget's property. During the inspection, Tagioff noted several violations and advised the Budget employee that Tagioff needed to discuss these violations with Shaikh. On January 29, 1996, Tagioff and Lee Forgey, another Polk County employee, met with Shaikh to discuss the violations noted by Tagioff on January 26, 1996. During this meeting, Shaikh, Tagioff, and Forgey discussed the violations previously found by Tagioff on January 26, 1996, concerning the well on Smokey's property. At no time during this meeting did Shaikh advise Tagioff or Forgey that neither he nor Budget own the well under discussion. The record is not clear, but sometime between January and May 1996, Budget's well had collapsed and was not useable. Subsequent to Budget's well collapsing, Shaikh contracted with George Dunham, after obtaining Smokey's permission, to connect Budget's water system (PWS6532442) to Smokey's well. At the time of connecting Budget's water system to Smokey's well, Dunham advised Shaikh that this was only a temporary solution and gave Shaikh a proposal for a new well since Budget's old well could not be repaired. On May 2, 1996, Tagioff made a reinspection of Budget's water system and found that Budget's well had collapsed and was inoperable, and that Budget had connected to Smokey's well to furnish water to the motel and its guests. Tagioff advised Shaikh that Budget would need a new well since its old well was inoperable and the connection to Smokey's well was only temporary. On May 21, 1996, Mark Fallah, a Polk County employee, conducted a site inspection and prepared a report for use in connection with Budget's application with Southwest Florida Water Management District (SWFWMD) for a new well permit. In connection with Fallah's site inspection and report, the Department advised Shaikh by letter dated May 21, 1996, of certain things concerning the new well that had to be completed prior to placing the well into public use. The letter provides in pertinent part as follows: Upon completion of the drilling and the verification of the grouting procedure by the Water Management District, the following items, as required by Chapters 62-555 and 62550 of the Florida Administrative Code, are to be completed prior to this water system being placed into public use. * * * 2. A continuous chlorination unit that is electrically interlocked with the well pump circuit. * * * A flow measuring device is required on all Non-Community Water Systems. A copy of the well completion report must be furnished to this office by the well driller within thirty (30) days after the well installation. Bacteriological clearance of the well must be performed by submitting twenty (20) consecutive water samples for analysis to an HRS certified laboratory. A maximum of two (2) samples per day taken at least six hours apart may be collected. Additional samples may be required until twenty (20) consecutive satisfactory samples are received. * * * After the well and plant construction is completed, contact our office for an inspection so that written clearance can be issued. It is prohibited for any Public water system to be placed into use without clearance being issued from this department. (Emphasis Furnished). SWFWMD approved Budget's new well application and issued Budget Permit No. 579811.01 for drilling a new well. However, upon completion of the new well, there were certain conditions that had to be met as indicated in the letter from the Department dated May 21, 1996. On May 31, 1996, and July 10, 1996, Fallah inspected Budget's new water system for compliance and, on both occasions, found that Budget had failed to install the chlorination unit, the flow meter, and had not submitted a well completion report or bacteriological samples. On July 15, 1996, the Department issued a Warning Notice to Shaikh advising him that the system could not be used until approved by the Department. For enforcement purposes, the file was transferred to Lewis Taylor, enforcement officer for drinking water systems for Polk County. On November 14, 1996, Taylor conducted an inspection of Budget's water system and reported that: (1) Budget's well had been placed into service without approval from the Department; (2) there was no chlorinator in operation; (3) there was no flow meter; (4) the Department had not received any bacteriological samples since November 1995; (5) there was no certified operator servicing the motel's water system; and (6) Budget had not provided public notice to its customers of its failure to monitor its drinking water. A second Warning Notice was issued by the Department and furnished to Shaikh on November 22, 19-96, which in substance advised Shaikh that Budget was in violation of Rules 62-550 and 62- 555, Florida Administrative Code, for its: (1) failure to obtain the Department's clearance before placing its new well in service; (2) failure to provide quarterly bacteriological samples; (3) failure to maintain proper chlorine residual in the water system; failure to provide a flow meter in the water system; (5) failure to provide public notification to its customers that its water system had failed to comply with Rule 62-550, Florida Administrative Code; and (6) failure to provide the Department with verification of Budget retaining a certified operator to oversee the operation and maintenance of its water system. On March 3, 1997, Tagioff and John GoPaul, US Environmental Agency, inspected Budget's water system and found that: (1) there was no chlorine residual in the system; (2) the chlorination unit located at the motel was not in use; (3) there was no flow meter within the system; (4) no quarterly bacteriological samples had been furnished to the Department; and the well had not been cleared for use by the Department. Based on the testimony of Lewis Taylor which I find credible, the Department has expended the following in the inspection of Budget's water system: (1) 20.25 hours of professional time at a rate of $30.00 per hour for a total of $607.50; (2) three hours of clerical time at a rate of $15.00 per hour for a total of $45.00; and (3) $27.00 in travel costs and postage. The total amount expended in the inspection of this water system by the Department was $679.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding Respondents guilty of the violations as charged and requiring Respondents to comply with the Orders for Corrective Action as set out in the Notice of Violation and Orders of Corrective Action in Case Nos. 96-653PW2442B and 96-653PW2442C. It is further recommended that Respondents be required to pay the costs and expenses of investigating the violations and prosecuting this matter in the amount of $679.50. DONE AND ENTERED this 27th day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Roland Reis, Esquire Department of Health Polk County Health Department 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-6740 Habib U. Shaikh 4014 Billingsgate Road Orlando, Florida 32839-7515 SDS Properties Investors Group, Inc. d/b/a Budget Motel 1418 Highway 17 South Lake Wales, Florida 33853
The Issue Whether the Petitioner should be granted a permit to clear and place fill on 0.23 acres of Lot 5, in Block 85 of Daytona North subdivision for the purpose of creating sufficient uplands for a single family dwelling, septic tank system and drainfield.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is the owner of a parcel of real property located in Section 17, Township 12 South, Range 29 East at Lot 5, Block 85, in the Daytona North Subdivision, west of the town of Bunnell in Flagler County, Florida. The Department is the agency of the State of Florida that is authorized to issue permits to dredge and fill wetlands pursuant to Chapter 373, Florida Statutes. It is successor to the Department of Environmental Regulation. On March 8, 1993, the Petitioner filed an application with the Department for a permit to clear and fill within 0.23 acres [approximately 10,000 square feet] of hardwood swamp which is connected by large drainage ditches to Bull Creek. The property subject to the application for a permit to fill is a portion of that property described in Finding of Fact 1. The purpose of obtaining a permit to fill was to create sufficient uplands upon which to construct a single family dwelling with a septic tank system, including a drainfield. Following a review of Petitioner's application, the Department issued its Notice Of Permit Denial on July 30, 1993. The denial was based on the Petitioner's proposed project failing to provide the Department with the reasonable assurances required by Section 373.414(1), Florida Statutes [formerly Section 403.918(1) and (2), Florida Statutes] While there are some pine trees scattered throughout the area, including the Petitioner's lot, the area does not appear to be what is commonly referred to as longleaf or slash pine flatwoods because the understory (undergrowth) is not dominated by saw palmetto, even though Petitioner's composite exhibit 2 (photographs of area) reflects a patch or two of saw palmetto. The area is dominated by understory that tends to thrive in soil that, while not always covered with water, is usually saturated with water. Additionally, the more predominant trees in the area are hardwood [gums, etc.] and cypress which tend to thrive in soil that is saturated with water. The upper surface of the soil in the area, including the Petitioner's property, is peat or muck which tends to be saturated with water and has very little percolation. To the north and east of the subdivision are potato and cabbage fields, drainage from which is routed through the subdivision in large agricultural drainage ditches. Petitioner's property backs up to a large drainage canal, which is one of many canals in the subdivision connected to these even larger agricultural drainage canals. Water from these many canals flows into Bull Creek, Class III waters, and from Bull Creek to Dead Lake and then into Crescent Lake. There is sufficient evidence to establish facts to show that the Petitioner's property comes within the definition of wetlands as defined in Section 373.019(17, Florida Statutes, which are connected to waters of the state as defined in Section 373.019(8), Florida Statutes. Therefore, the Petitioner's proposed project is not exempt from permitting and requires a dredge and fill permit for the proposed construction. Water quality in Bull Creek and in the receiving waters of Dead Lake and Crescent Lake has been degraded as a result of agricultural runoff from nearby farms. This runoff, containing nitrogen and phosphorus, the main components of fertilizer, is routed through the ditch system in the subdivision directly into receiving waters of Bull Creek, Dead Lake and Crescent Lake. Agricultural runoff from these sources has resulted in water quality violations for nitrogen, phosphorus, bacteria and benthic macroinvertebrates in Bull Creek Canal; and for nitrogen, phosphorus and dissolved oxygen in Dead Lake and Crescent Lake. This subdivision contains approximately 800 lots located in wetlands. It is anticipated that if dredge and fill permits were available for development, then the lots located in the wetlands would develop first due to the difference in price between the lots located in the wetlands as opposed to lots located in the upland. It was the Department's testimony that this was the first application received by the Department to place fill in wetlands in the subdivision. However, photographs 22 and 23 of Petitioner's composite exhibit 2 reflect that there are houses in the wetlands area of the subdivision that appear to be located on wetlands that have been filled, with a septic tank system located on the filled area. Petitioner's proposed project is permanent in nature, and any wetlands that were filled as a result of this project would be lost to the system. Likewise, any other lots located in the wetlands area of the subdivision that were developed would also be lost to the system. Assuming that the lots in the wetlands area of the subdivision were developed as the Department anticipates, then there would be a permanent loss to the system of a large area of wetlands which would result in a loss of the wetlands filtering system. Without this filtering system, there would be a decrease in the nutrient uptake which could create algal blooms and deplete dissolved oxygen levels, thus further degrading water quality resulting in a long term water quality violation. Due to nature of the surface of the soil located in the wetlands area of the subdivision and its lack of permeability, the effluent from the septic tank system would likely fail to percolate below the fill. This failure to percolate would likely result in a lateral flow of the effluent towards the drainage ditches located within the subdivision which flow into the agricultural drainage canals and eventually into Bull Creek to Dead Lake to Crescent Lake, thus further degrading water quality resulting in a along term water quality violation. Development of the wetlands area of the subdivision would adversely affect the conservation and productivity of fish by further degrading the already poor water quality of Bull Creek and Dead Lake. While the proposed project's effect on the habitat and functioning of the wetlands area of the subdivision or the water quality may be minimal, it is the adverse cumulative impact the proposed project would have, by "opening the door", so to speak, on other permit applications for dredge and fill in the wetlands area of the subdivision that is the main concern.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the Petitioner's application for dredge and fill Permit Number DF 182280792. RECOMMENDED this 6th day of May, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 6th day of May 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5970 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Petitioner Stanley A. Ferguson Petitioners did not submit any proposed findings of fact. Respondent, Department's Proposed Findings of Fact. 1. The Department's proposed findings of fact 1 through 15 are adopted in substance as modified in Findings of Fact 1 through 19 of the Recommended Order. COPIES FURNISHED: Stanley A. Ferguson Route 1, Box 21A-1R Bunnell, Florida 32110 Donna M. La Plante, Esquire Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-240 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues set forth in DOAH Case No. 84-3810 concern the question of whether the State of Florida, Department of Environmental Regulation (DER) should issue a permit to Homer Smith d/b/a Homer Smith Seafood (Homer Smith) to construct a wastewater treatment facility which is constituted of a screening mechanism, dissolved air flotation treatment system, sludge drying bed, pumping station and subaqueous pipeline. In the related action, DOAH Case No. 84-3811, the question is raised whether DER should issue a dredge and fill permit to Homer Smith for the installation of the aforementioned pipeline along submerged lands in Trout Creek, Palmo Cove and the St. Johns River.
Findings Of Fact Introduction and Background In 1982, Homer Smith, under the name of Homer Smith Seafood, established a calico scallop processing facility in the vicinity of the intersection of State Road 13 and Trout Creek in St. Johns County, Florida. From that point forward, Smith has owned and operated the processing plant. His plant adjoins Trout Creek, which is a tributary to the St. Johns River. Both Trout Creek and the St. Johns River are tidally influenced waters that are classified as Class III surface waters under Rule 17-3.161, Florida Administrative Code. The processing undertaken by Smith's operation at Trout Creek contemplates the preparation of the scallops for human consumption. In particular, it involves the purchase of calico scallops from Port Canaveral, Florida, after which the scallops are transported by refrigerated trucks to the processing plant. They are then unloaded into metal hoppers and directed into rotating tumblers which separate out the scallops from sand, mud and other extraneous material. The scallops are placed in a steam tumbler that removes the shells and then passed through a flow tank that washes away sand, grit and shell particles. The scallops are next passed through eviscerators. These eviscerators are long tubes of aluminum with roughened surfaces that pull the viscera off of the scallops. The detached scallops are then sent along a conveyor belt, with scallops in need of further cleaning being picked out and sent to a second eviscerator. The eviscerated scallops are then chilled and packed for marketing. It is the viscera and wastewater associated with this material that is the subject of permitting. Homer Smith is one of about six automated scallop processing plants located in Florida. Two other plants are within St. Johns County, on the San Sebastian River in St. Augustine, Florida. Three other plants are located in Port Canaveral, Florida. When Smith commenced his operation of the scallop processing plant in the summer of 1982, he discharged the scallop processing wastewater into an area described as a swamp with an associated canal which connected to Trout Creek. By the fall of 1982, Smith had been told by representatives of the Department of Environmental Regulation that to operate his facility with the discharge would require a permit(s) from DER. At the time of this discussion, automatic scallop processing was an industry for which appropriate wastewater treatment alternatives had not been specifically identified by the Department of Environmental Regulation or the United States Environmental Protection Agency. This was and continues to be the case as it relates to the promulgation of technology-based effluent limitations designed for calico scallop processors. This circumstance is unlike the situation for most other industries for which DER has established technology-based effluent limitations. To rectify this situation, Florida Laws 85-231 at Section 403.0861, Florida Statutes, requires DER to promulgate technology-based effluent limitations for calico scallop processors by December 1986. In the interim, consideration of any permits that might be afforded the calico scallop processors by the exercise of DER's regulatory authority must be done on a case-by-case basis, when examining the question of technology-based effluent limitations. DER sent a warning letter to Smith on April 20, 1983, informing the processor that discarding its wastewater into Trout Creek without a DER permit constituted a violation of state law. After the warning letter, scallop harvesting declined to the point that by mid-June of 1983 the plant had closed down, and it did not reopen until the middle part of September 1983. Upon the recommencement of operations, DER issued a cease and desist notice and ordered Smith to quit the discharge of wastewater from the facility into Trout Creek. On the topic of the cease and desist, through litigation, Smith has been allowed the right to conduct interim operation of his business which involves direct discharge of wastewater into Trout Creek, pending assessment of wastewater treatment alternatives and pursuit of appropriate DER permits. 1/ When Smith filed for permits on April 10, 1984, he asked for permission to dredge and fill and for construction rights pertaining to industrial wastewater discharge into the St. Johns River. The application of April 10, 1984, involved the installation of a wastewater treatment system and an associated outfall pipeline to transport treated wastewater to the St. Johns River from the plant location. This system would utilize a series of settling tanks and a shell-filter lagoon as the principal wastewater treatment. DER, following evaluation, gave notice in October 1984 of its intent to issue permits related to dredge and fill and the construction of the wastewater treatment facility. In the face of that notification, the present Petitioners offered a timely challenge to the issuance of any DER permits. In considering treatment alternatives, Homer Smith had employed various consultants and discovered that treatment beyond coarse screening had not been attempted in processing calico scallop wastewater. Those consultants were of the opinion that conventional treatment methods such as clarification, sand filtration, vortex separation, breakpoint chlorination, polymers and spray irrigation were of limited viability due to the inability to remove key constituents within the waste stream or based upon certain operational difficulties that they thought would be experienced in attempting those methods of treatment. As envisioned by the April 10, 1984, application for permit, interim treatment of the wastewater was provided by the use of a series of settling tanks and a shell-filter lagoon, within which system adjustments were made to the delivery of wastewater treatment. The April 10, 1984, permit application by Smith did not envision any chemical treatment of the wastewater aside from that which might occur in association with the settling and filtration through the shell-filter lagoon. Following DER's statement of intent to issue a permit for construction of the wastewater treatment facility as described in the April 10, 1984, application by Smith, DER became concerned about the potential toxicity of calico scallop wastewater, based upon its own studies. As a consequence, Smith amended the application for wastewater treatment facility to include use of chemical coagulation and flotation. This amendment occurred in March 1985, and the wastewater treatment process in that application envisioned the use of an electroflotation wastewater system. In view of toxicity problems experienced with the testing related to the use of an electroflotation wastewater treatment system, this treatment alternative was discarded in favor of a dissolved air flotation (DAF) system. This system was pursuant to an amendment to the application effective May 31, 1985. This amendment of May 1985 was in furtherance of the order of the hearing officer setting a deadline for amendments to the application. DER issued an amended intent to grant permits for the DAF unit and the associated pipeline and that action dates from June 28, 1985. The Petitioners oppose the grant of these permits for the DAF unit and pipeline, and under the auspices of their initial petition have made a timely challenge to the grant of a permit for the installation of the DAF wastewater treatment unit and associated pipeline. It is the DAF unit and pipeline that will be considered in substance in the course of this recommended order. On July 6, 1984, Smith sought an easement from the State of Florida, Department of Natural Resources (DNR) for the installation of the pipeline. This was necessary in view of the fact that the pipeline would traverse sovereignty lands which were located beneath Trout Creek, Palmo Cove and the St. Johns River. On December 17, 1984, DNR issued a notice of intent to submit that application to the Board of Trustees of the Internal Improvement Trust Fund with a recommendation of approval. This action was challenged by the Petitioners on January 7, 1985, in a petition for formal hearing challenging the grant of the easement. DOAH Case No. 85-0277 concerns this challenge to grant of an easement. Originally, by action of January 28, 1985, the easement case was consolidated with the present DER permit actions. At the instigation of DNR, the easement case was severed from consideration with the present action. The order of severance was entered on July 31, 1985. The DNR case will be heard on a future date yet to be established. The DNR case was severed because that agency preferred to see test results of treatment efficiencies following the construction of the DAF unit. By contrast, the present DER cases contemplate a decision being reached on the acceptability of the construction of the DAF unit and attendant features, together with the pipeline on the basis of theoretical viability of this entire system. This arrangement would be in phases in which the construction of the upland treatment system would occur within 90 days of the receipt of any construction permit from DER, followed by a second phase within which Smith would construct the pipeline within 60 days of receipt of any other necessary governmental approval, such as the DNR easement approval. Furthermore, DER would wish to see the results of an integrated treatment system involving the upland treatment by the DAF unit and its attendant features and the use of the pipeline and the availability of a mixing zone, that is to say the end of pipe discharge, before deciding on the ultimate question of the grant of an operating permit for the wastewater treatment system. The quandary presented by these arrangements concerns the fact that discharge from the DAF treatment unit would be temporarily introduced into Trout Creek, pending the decision by DNR to grant an easement for the pipeline and the necessary time to install that pipeline. Given the difficult circumstances of these actions, there is raised the question of the propriety of discharging wastewater into Trout Creek pending resolution of the question of whether DNR wishes to grant an easement to place the pipeline over sovereignty submerged lands. This is a perplexing question in view of the fact that DNR requested severance from the present action, thereby promoting further delay in the time between any installation of the upland treatment system and the pipeline. Finally, Trout Creek is an ecosystem which has undergone considerable stress in the past, and it is more susceptible to the influences of pollution than the St. Johns River would be as a point of ultimate discharge from the pipeline. This dilemma is addressed in greater detail in subsequent sections within the recommended order. Petitioner River Systems Preservation, Inc., is a nonprofit organization comprised of approximately seven hundred persons. The focus of the organization is to protect and enhance the environment of northeast Florida. The individual Petitioners, Pinkham E. Pacetti, Robert D. Maley, Ruth M. Whitman and others, are members of the corporation who own property or live near the scallop processing plant of Respondent Smith. In addition, Pacetti owns a marina and recreational fishing camp that is located across Trout Creek from Smith's plant. Pacetti's fish camp dates from 1929. On the occasion of the opportunity for the public to offer their comments about this project, a significant number of persons made presentations at the public hearing on August 29, 1985. Some members of the public favored the project and others were opposed to the grant of any permits. St. Johns County Board of County Commissioners, in the person of Commissioner Sarah Bailey, indicated opposition to the project, together with Bill Basford, President of the Jacksonville City Council. Warren Moody, the vice-chairman of the Jacksonville Waterways Authority spoke in opposition to the project. The Florida Wildlife Federation and the Jacksonville Audubon Society expressed opposition to the project. The officials related the fact of the expenditure of considerable amounts of public tax dollars to improve water quality in the St. Johns River and their concern that those expenditures not be squandered with the advent of some damage to the St. Johns River by allowing the permits in question to be issued. These officials considered the St. Johns River to be a significant resource which they are committed to protecting. The City of Jacksonville, Clay County, Green Cove Springs, the Jacksonville Waterways Authority, the Northeast Florida Regional Planning Council and St. Johns County expressed opposition to the project contemplated by the present permit application, through the adoption of certain resolutions. These broad-based statements of opposition were not spoken to in the course of the hearing by members of any technical staffs to these governmental institutions. Private members of the public, some of whom are affiliated with River Systems Preservation, Inc., expressed concern about water quality violations, harm to fish and other environmental degradations that have been caused by the Homer Smith operation in the past and their belief that these problems will persist if the permits at issue are granted. Those persons who favored the project, in terms of public discussion, primarily centered on the idea that, in the estimation of those witnesses, fairness demanded that Smith be afforded an opportunity to demonstrate that this proposed system of treatment was sound and the quality of the water being discharged from the Homer Smith plant was not as bothersome as had been portrayed by the persons who opposed the grant of environmental permits. Industrial Wastewater Construction Permit Treatment System Description of Homer Smith's Plant and Its Operation. The source of water used for the processing of the scallops at the Homer Smith plant is a well which is located on that property. Homer Smith is allowed to withdraw 300,000 gallons of water per day in accordance with a consumptive use permit that has been issued by the St. Johns River Water Management District. To ensure Smith's compliance with this permit, a metering device is located on the well. Typically, the plant operates an eighteen-hour day, five days a week, using water at a rate of 200 gallons per minute. This would equate to 215,000 gallons per day over an eighteen-hour day. Prior to the imposition of restrictions by the Department of Environmental Regulation through the consent order, this facility had processed as much as 40,000 pounds of scallops each day, for a total of 36,000 gallons each week, at a gross revenue figure of $225,000 per week. Characteristics and Frequency of Effluent Discharge The wastewater generated by the scallop processing that is done at the Homer Smith plant is principally constituted of the well water used to clean the scallops, proteinaceous organic materials, and metals. The metals are introduced into the wastewater stream from the scallop tissue. The wastewater stream also has a certain amount of sand and grit, together with shell fragments. The concentrations of organic materials within the wastewater stream are at high levels. There is also an amount of fecal coliform bacteria and suspended solids. The pollution sources within the wastewater stream include total suspended solids (TSS), biochemical oxygen demand (BOD), nutrients (nitrogen and phosphorus) and the coliform bacteria. In the neighborhood of 30 percent of the BOD in the wastewater is soluble. The balance of the BOD is associated with the suspended solids. With time the organic materials in the wastewater stream will decompose and with the decomposition present certain organic decomposition products, which would include ammonia, amines and sulfides. Heavy metals in the wastewater have been in the scallop tissue and are released with the cleaning of the scallops. These metals include cadmium, copper, zinc, iron, manganese, silver and arsenic. The presence of these metals within the tissues of the scallops are there in view of the fact that the scallops are "filter-feeders" which have taken in these elements or metals that naturally occur in the ocean water. The permit application contemplates an average of five days a week of operation for eighteen hours a day. Notwithstanding the fact that in the past the Homer Smith Seafood operation had processed scallops seven day week, twenty- four hours per day, Smith does not desire to operate more than five and a half days a week in the future. That is perceived to mean five eighteen-hour days and a twelve-hour day on the sixth day. The treatment system contemplated here is for a flow volume of around 200 gallons per minute during normal operation. The system can operate as high as 300 gallons per minute. That latter figure approaches the design capabilities of the treatment system proposed. Wastewater is discharged only when scallops are being processed. There is basically 1:1 ratio between the volume of well water used to process the scallops and the amount of wastewater discharged. Proposed Treatment System and Alternatives As already stated, there is no specific industry standard set forth in the DER rules which would describe technology-based standards for the treatment of calico scallop wastewater. In those instances where the agency is confronted with an industry for which technology-based standards have not been established, DER examines the question of whether that effluent is amenable to biological treatment as contemplated in Rule 17-6.300(1)(n)1., Florida Administrative Code, as an alternative. Biological treatment is a treatment form normally associated with domestic waste and the imposition of this treatment technique is in furtherance of achieving a secondary treatment standard found in Chapter 17-6, Florida Administrative Code, which results in 20 mg/L of BOD and TSS, or 90 percent removal of those constituents, whichever is the greater performance in removal efficiency. In the absence of specific standards related to the calico scallop industry, and in the face of the interpretation of its rules in which DER calls for an examination of the possibility of biological treatment as an alternative to treatment specifically described for a given industry, it was incumbent upon this Applicant to examine the viability of biological treatment of the scallop wastewater product. The Applicant has considered biological treatment as an alternative and rejected that treatment form, in that Smith's consultants believe the wastewater is not amenable to biological treatment. By contrast, Petitioners' consultants believe that biological treatment should be the principal focus in treating the scallop wastewater and contend that biological treatment is a more viable choice when contrasted with the option chosen by the Applicant. If this waste is not amenable to biological treatment, Rule 17-6.300(1)(n)1., Florida Administrative Code, envisions an acceptable or minimum level of secondary treatment shall be determined on a case-by-case basis. In the instance where biological treatment is not a reasonable choice, the Applicant is expected to achieve treatment results which are comparable to those arrived at in treating domestic waste by the use of biological treatment techniques. On this occasion, DER had not established what they believe to be a comparable degree of treatment for calico scallop waste, assuming the unavailability of biological treatment. The present case is a matter of first impression. As a result, the idea of a comparable degree of treatment shall be defined in this hearing process, assuming the inefficacy of biological treatment. In that event, DER must be assured that the proposed treatment plan has an efficiency that rivals the success which biological treatment promotes with domestic waste, taking into account the quality of the effluent prior to treatment, available technology, other permitting criteria and the ambient conditions where the waste stream is being discharged. In arguing in favor of biological treatment, Petitioners pose the possibility of an integrated system in which primary settling tanks or clarifiers would be used together with a biological treatment step, which is referred to as a trickling filter, followed by final settling by the use of tanks or clarifiers in an effort to achieve BOD concentrations in the range of 200 mg/L to 400 mg/L. In this connection, the dissolved air flotation system is seen in the role of alternative to the initial stage of settling of the constituents within the wastewater stream. It is not regarded as the principal means of treatment of the waste. The trickling filter system as a biological treatment medium involves the use of a bacterial culture for the purpose of consuming the oxygen-demanding constituents, BOD. The trickling filter technique, if a viable choice, has the ability to remove 70 to 75 percent of BOD and TSS. Petitioners suggest further treatment of the waste beyond primary and final settling and trickling filter can be afforded by involving activated sludge, which according to their experts would end up with a biological oxygen demand in the 20 mg/L range. Although the constituents of the Smith plant's waste are of a highly organic nature, and, at first blush a candidate for biological treatment by use of the trickling filter, the problem with this form of treatment has to do with the intermittent flow in the Smith operation. This intermittent flow is caused by the fact that the plant does not operate throughout the year. The plant operations are seasonal, depending on calico scallop harvesting which does not occur on a routine basis. Therefore, the problem is presented of trying to keep the biological treatment system "alive" and operating at levels of efficiency which can be expected to maintain the percentage of removal of BOD and TSS that a healthy system can deliver. The bacteria colonies which are vital to the success of the biological treatment system must be fed on a continuous basis to maintain balance in the population of the colony. This would be a difficult undertaking with the Smith operation, given the interruptions in operations which could lead to the decline in the bacterial population and a poorer quality of treatment once the operations were resumed. This finding takes into account the fact that the colony can survive for a week or two by simply recirculating water over the filter. Obviously, in order to maintain necessary efficiencies within this biological treatment, the bacteria must do more than survive. The further suggestion that has been offered that the bacteria could be sustained for longer periods of time by feeding them seafood waste or dog food are not found to achieve the level of efficiency in the operation that would be necessary in posing biological treatment as an alternative. Again, it is more of an intervening measure designed to assure the survival of bacteria pending the continuation of the operations of the plant, as contrasted with a system which is continual and taking into account the uniformity of the waste product more efficient. Another problem with feeding the bacteria when the plant is not operating is that of disposing of the waste produced when this auxiliary feeding is occurring. Just as importantly, biological treatment is questionable given the long retention times necessary for that process and the build-up of toxic levels or concentrations of ammonia. The Applicant had employed an aerated lagoon in attempting to treat the waste and experienced problems with ammonia build up. Although this system did not call for the degree of treatment of the waste prior to the introduction into the lagoon that is contemplated by the present proposal of the Applicant, it does point to the fact of the problems with ammonia in the biological treatment system. Dr. Grantham, a witness whose testimony was presented by the Petitioner, conceded the difficulty of removing ammonia from the trickling filter. Moreover, the biological treatment system is not especially efficient in removing metals and phosphorus from the wastewater. Alternative treatment would be necessary to gain better efficiency in removals of those constituents. The trickling filter is expected to gain 50 percent metals removal, which is inadequate given the concentrations of heavy metals found in the scallop wastewater. Phosphorus could be removed after treatment by the trickling filter by the use of lime or alum. Assuming optimum conditions in the use of biological treatment after primary and final settling, thereby arriving at a BOD level of 200 mg/L, it would then be necessary to make further treatment by the use of activated sludge to see 20 mg/L BOD. The problem with activated sludge is related to the fact that this form of treatment is particularly sensitive to interruptions in flow, which are to be expected in this wastewater treatment setting. On balance, biological treatment does not present a viable choice in treating scallop waste. That leaves for consideration the question of whether the Applicant's proposal would afford a comparable degree of treatment to that expected in the use of biological treatment of domestic waste. The manufacturer of the dissolved air flotation unit or DAF system proposed, known as the Krofta "Supracell," offers another piece of equipment known as the "Sandcell" which in addition to the provision for dissolved air flotation provides sand filtration. The Sandcell might arrive at BOD levels of 400 mg/L. However, the testimony of the witness Lawrence K. Wang, who is intimately familiar with the Krofta products, in responding to questions about the use of the Sandcell system and suggestion that the system would arrive at 400 mg/L BOD responded "could be." This answer does not verify improvement through the contribution of sand filtration. For that reason inclusion of a Sandcell for filtration of BOD is not suggested in this fact finding and the system as proposed must be sufficient in its own right. Having realized the need to provide greater treatment than screening or filtering the waste stream, the Applicant attempted to design a treatment system using flotation technology together with chemical precipitation and coagulation. At first the Applicant examined the possibility of the use of electroflotation (EF). This involved the collection of wastewater in a retention tank and the generation of an electric current to create a series of bubbles to float insoluble flocs. Those flocs are caused by the use of ferric chloride, sodium hydroxide and various polymers which are added to the waste stream. The flocs are then pushed to the top of the chamber by the air bubbles, and this particulate matter is skimmed off by the use of a paddle. Pilot testing was done of the electroflotation technology and showed promising results, so promising that a full-scale electroflotation unit was installed and tested. The full-scale electroflotation showed reasonable removal of BOD, TSS, nutrients, coliform and trace metals. This technique was discarded, however, when bioassay testing of the treated effluent was not successful. In examining the explanation for the failure, the experts of the Applicant were of the opinion that certain chemical reactions were occurring as a result of the passage of the electrical current through the wastewater stream. When this problem with acute toxicity could not be overcome through a series of adjustments to the process, the Applicant decided to test another form of flotation, which is referred to as dissolved air flotation (DAF). This system employs the use of chemicals to create insoluble flocs. Unlike the electroflotation unit, though, it does not utilize electrical currents to create the air bubbles employed in the flotation. The dissolved air flotation thereby avoids problems of toxicity which might be attributed to the passage of electrical current through the water column. The present system as proposed by the Applicant has a number of components. The first component of treatment involves the passage of raw wastewater through a mechanical screening device, which is designed to remove a certain number of particulates by catching those materials on the screen. That material is then removed from the plant and disposed of off site. The balance of the wastewater after this first stage of treatment passes into a sump area and from there into a primary mix/ aeration tank. This water is then chemically treated to facilitate the formation of insoluble flocs. The chemically treated wastewater then enters a premanufactured Krofta Supracell 15 DAF unit which is designed to form bubbles by the use of pressurized air, with those bubbles floating the waste materials within the floc to the surface. Again, this method does not use electrolysis. The floated solid materials are then skimmed from the surface and directed to a holding tank and subsequently pumped to sludge drying beds. Some of the treated wastewater is recycled through the DAF unit after pressurization and in furtherance of forming the necessary bubbles for the DAF unit. The balance of the water is directed to a force main lift station. This water would then be transported through the eight-inch PVC pipe some 13,000 feet into the main channel of the St. Johns River where it is distributed through a five port diffuser. The screening mechanism spoken of had been installed in mid-December 1984 and has been used since that time to filter the wastewater. The screening mechanism is in substitution of settling tanks and shell pits. The shell pits which had been used before presented problems with odors as well as the ammonia build up which has been addressed in a prior paragraph. The removal efficiency of the screening mechanism is 30 percent of particulates associated with pollution parameters, as example BOD, total Kjeldahl nitrogen, total phosphorus and TSS. The frequency of the transport of these screened materials to the off site disposal is four to six times a day and the screen is decontaminated at the end of each day when the operations are closed. The application contemplates the same operating procedures of disposal and maintenance with the advent of any construction permit. The primary mix/aeration tank aerates the wastewater and through that process and the retention time contemplated, equalizes the flow regime and promotes a more balanced concentration of waste materials prior to the introduction of that wastewater for chemical coagulation and flotation. This step in the treatment process enhances the treatment efficiency. Some question was raised by the Petitioners on the size of the primary mix-aeration tank as to whether that tank was sufficient to equalize the flow, and conversely, the impacts of having too much retention time built into that tank, which would promote the build-up of toxic concentrations of ammonia in the wastewater. The retention time within the sump and the primary mix-aeration tank approximates one and one-half hours. The retention time and size of the primary mix-aeration tank are found to be acceptable. This design appropriately addresses concerns about the build-up of decomposition products and toxicity, to include ammonia. The sludge which collects in the primary mix-aeration tank will be pumped back to the sump pit by return flow. The sump pit itself will be pumped out in the fashion of cleaning a septic tank on the basis of once a week. The sump pit also receives the return flow of leachate from the sludge drying bed. Once equalization of flow is achieved in the primary mix-aeration tank, that wastewater is then treated by the use of alum, sodium aluminate and polymers. The purpose of this treatment is to convert soluble and insoluble organic matter such as TSS and BOD, trace elements and phosphorus into insoluble flocs that can be removed by flotation. These combinations of chemicals and dosage rates have been tested in electroflotation and dissolved air flotation bench and pilot scales for use associated with this project and a list of appropriate chemicals and ranges of dosage rates has been determined. It will be necessary for these chemicals and general dosages to be adjusted in the full- scale operation under terms of the construction permit. This facet of the treatment process must be closely monitored. Once the wastewater stream has received the chemical treatment, it is introduced into the Krofta Supracell 15 DAF unit. This unit is 15 feet in diameter, and within this cylinder bubbles are generated by pressurizing some of the chemically treated wastewater and potentially clean tap water. The use of clean tap water promotes dilution of the wastewater stream as well as greater efficiency in the production of the bubbles. Chemically treated wastewater is brought into the cylinder through the back of a revolving arm that moves around a center column of the DAF unit at the speed of the effluent flow. The purpose of this mechanical arrangement is to eliminate horizontal water velocity, to protect the integrity of the flocs that are being formed by the use of the chemicals. Those flocs float to the surface in a few minutes' time, given the normal turbulence and shallow depth of the DAF unit. This limited retention time also avoids ammonia build up. The floating material is then scooped and poured into a stationary center section and is discharged by gravity to the sludge holding tank. Wiper blades which are attached to the revolving arm scrape the bottom and sides of the tank and discharge any settled sludge to a built-in sump in the DAF unit. These materials which are settled in the bottom of the DAF cylinder are transported through the sludge holding tank and eventually placed in the sludge drying beds. The treated wastewater is removed by an extraction pipe associated with the center section of the DAF unit. It is then discharged. The use of clean tap water from the well and the ability to recycle the waste stream can promote greater treatment efficiency in terms of removal of undesirable constituents of the waste stream and the reduction of concentrations of those materials. As a measurement, approximately 8 percent of the wastewater flow will be removed as sludge. This sludge is sufficiently aerated to be reduced in volume by about one-half over a period of ten to thirty minutes in the sludge holding tank. It is then sent to the sludge drying beds. The sludge drying beds are designed to accommodate 30,000 gallons of sludge. They are 60 feet long, 25 feet wide and 4 feet deep. Those drying beds are of greater size than is necessary to accommodate the volume of sludge. The sludge drying beds have a sand and gravel bottom. The water drains from the sludge as leachate and returns to the sump pit in the treatment system at a rate of five to ten gallons a minute. Some concern has been expressed that the "gelatinous" nature of the sludge will make it very difficult to dewater or dry. This opinion is held by experts of the Petitioners, notwithstanding the fact that polymers are used in the treatment process. One expert in particular did not believe that the sludge would adequately dry. Having Considered the evidence, the opinion that the sludge will not dry sufficiently is rejected. Nonetheless, it is incumbent upon the Applicant to monitor drying conditions of the sludge very carefully and, if need be, to add some chemical such as calcium hydroxide to enhance the drying capacity of the sludge material. It is anticipated that the sludge will be removed once a day and this arrangement should be adhered to. With adequate drying, the sludge material can be removed with the use of shovels, rakes and a front-end loader as proposed by the Applicant. With frequent removal and adequate drying, problems with odors can be overcome, and problems with ammonia build up and the generation of unreasonable levels of bacteria can be avoided. Should problems with odors, ammonia and bacteria occur, it would be necessary for the Applicant to purge the drying beds, to include the sand and gravel which had been invested with the sludge materials that had caused the problems. Although Smith has not tested the drying bed leachate as to specific nature, the treatment process can be expected to deal with problems of any build-up of ammonia concentrations, fecal coliform bacteria and other organic decomposition products. This pertains to the ability to remove these offending substances from the site in terms of removal of the residual solids and the ability to treat those parameters within the leachate as the wastewater is cycled through the system. The treated wastewater will be transported to a pumping station by gravity flow and then pumped via the pipeline to the proposed point of discharge in the main channel of the St. Johns River. This pipeline is constituted of fabricated sections of pipe 20 feet in length, connected with bell and spigot joints, rubber gaskets and solvent welding. The treated wastewater is released into the river through a five point diffuser which has three-quarter inch openings angled at ten degrees from the horizontal bottom. The pipeline is anchored with prefilled 80-pound concrete bags attached with polypropelene straps which are placed at 8-foot intervals. These are placed to keep the pipe from floating. The diffuser is supported by four piles driven into the river bottom and surrounded by a series of concrete bags. The purpose of this arrangement is to hold the diffuser in place and to protect it against potential damage from anchors or other possible impact. The Applicant acquiesces in the choice to have the pipeline tested for leaks once a month in the period June through September and every other month during other parts of the year. If leaks are found, the Applicant would be responsible for repairing those leaks. As stated before, it is necessary for the Applicant to receive permission from the State of Florida to be granted an easement before the pipe can be installed. Prior to that permission being granted, the treated wastewater would be placed in Trout Creek, which is adjacent to the processing plant. Predicted End of Pipeline Quality of the Effluent In trying to predict the quality of effluent at the end of the pipeline, bench scale and pilot scale testing was done related to the DAF technology. This testing was done related to screened wastewater that was collected from the plant in April 1985. In this connection two series of DAF bench scale tests were performed. They related to samples collected on April 18 and 19, 1985, which were packed in ice and shipped directly to a research laboratory in Lenox, Massachusetts, where they were treated with chemicals and a laboratory size DAF unit. The concentration of the wastewater parameters were measured and recorded before and after treatment, and the results of those tests are set forth in the Applicant's Exhibit A-4(B)(3), at Table 2-1. The pilot scale testing that was done in this case related to a 4-foot diameter DAF unit which had been installed at the Homer Smith plant. This testing occurred in April 1985. The basis of the testing was samples taken on April 15 and 19, 1985. Again, wastewater parameters were measured before and after treatment and the results are set forth in Applicant's Exhibit A-4(B)(3), at Table 2-1. When the initial testing was done with the DAF, results for total coliform bacteria uniformly fell below a range of 35 organisms/100 ml. Subsequent pilot tests yielded higher bacterial counts which would indicate that there was a build-up of bacteria within the DAF unit. This verifies the need to require that the DAF unit contemplated by the application be routinely cleaned or sanitized to avoid the build-up problem. TSS in the pilot unit effluent was reduced to 40 mg/L and lower. The capacity for metals removal in the pilot scale testing was good pertaining to copper and zinc. The ability to remove cadmium showed a result of 0.013 and 0.015 mg/L. The best performance in the pilot scale testing related to BOD removal showed a value of 510 mg/L. It should be noted that the bench scale testing and pilot scale testing were in the face of significant variations in the amount of BOD presented by the screened wastewater. This identifies the need to pay close attention to the removal efficiency of the system related to the BOD parameter in order to achieve consistent levels of BOD following treatment. The system under review is referred to as full-scale treatment. This treatment can be expected to exceed the levels achieved in the DAF bench and pilot scale testing because: (a) As a general proposition, treatment efficiency improves as the scale of machinery increases from bench to pilot to full-scale; (b) The bench and pilot scale tests were run without the benefit of the primary mix-aeration tank and the benefits derived from that part of the treatment apparatus, that is to say, uniformity of the flow and better dispersion of the constituents of the wastewater stream, prior to chemical treatment; (c) The pilot DAF unit used exclusively recycled wastewater to undergo pressurization for the creation of the air bubbles. In the course of the hearing it was established that approximately 50 gallons per minute of clean tap water could be brought in to the treatment process resulting in the formation of more bubbles and the facilitation of up to 10 percent greater treatment efficiency based upon that change. The other contribution made by the use of clean tap water was the possibility of as much as a 20 percent dilution of the wastewater stream, in terms of concentration of constituents within the wastewater stream; (d) In a full-scale operation, the opportunity is presented to routinely adjust the chemical dosages as well as select among a range of chemicals in order to achieve the greatest treatment efficiency; (e) In employing routine sanitization of the DAF unit by use of a mild chlorine compound, the tendency to accumulate coliform bacteria can be overcome. Removal of this adverse influence improves the water quality. In traveling through the pipeline, the transit time is in the range of two to three hours. At a normal rate of 250 gallons per minute of discharge, the transit time in the pipeline is 2.25 hours. Given the constituents of the wastewater, bacterial populations can be expected and could conceivably consume sufficient amounts of oxygen to affect the dissolved oxygen levels within the wastewater as it exits the pipe at the diffuser ports. In addition, there is some possibility of ammonia build up within the pipeline. To avoid the build up of bacteria at harmful levels, sanitation of the DAF unit must be accomplished. In addition, the pipeline itself should be flushed with clean water at the close of operations each day and treated with small amounts of chlorine to address bacteria which may form within the pipeline. This avoids the increasing concentrations of ammonia and protects against lowered dissolved oxygen concentrations and the possibility of increased levels of toxic substances in the effluent which might be attributable to the proliferation of bacteria and the build-up of ammonia during the transport through the pipeline. Taking into the account the nature of this wastewater and the velocity associated with the transport and the sanitization of the pipeline, sedimentation associated with organic solids or other materials will not present a problem. The pollution parameters associated with the treated effluent at the point of discharge from the pipeline can be expected to meet Class III orders, excepting unionized ammonia, specific conductance, copper, cadmium, pH and zinc. In order to achieve satisfactory compliance with regulatory requirements related to those parameters, the Applicant has requested a two-meter mixing zone. The purpose of that mixing zone would be to afford an opportunity for dispersion and mixing in the ambient water before imposition of water quality standards. The implications of that mixing zone are discussed in a subsequent section to the fact finding within the Recommended Order. In effect use of the mixing zone will promote compliance with standards pertaining to the subject parameters. Petitioners point out the fact that the Applicant has based its assumptions on the results of treatment on the availability of four sets of data which were obtained from DAF effluent--two sets of data coming from the bench tests and two sets of data from the pilot plant. Further, there is an indication of the variation in quality of the effluent from one test to the next and the need to employ different dosage rates of chemicals in the face of those variations. The full-scale system utilizes a number of techniques to gain some uniformity in the quality of the effluent prior to chemical treatment and thereby some uniformity in the amount of chemicals necessary to treat the effluent. This overall system can then be expected to produce treated wastewater that is basically uniform in its constituents. Petitioners point out the limited amount of data in the testing related to BOD. There were, in fact, only two data points: one related to the bench system and one related to the pilot system pertaining to BOD, both of these the product of different chemical dosages for treatment. Again, the system that is at issue in this proceeding can be expected to arrive at a more consistent level of BOD than is depicted in the results pertaining to bench scale and pilot scale testing. In fact, those results were not remarkably disparate in that the bench sale test produced 560 mg/L and the pilot scale test produced 510 mg/L. While the data related to BOD is limited, it still gives sufficient insight as to the probability of successful full-scale treatment and the test data is found to be a reliable indication of success in achieving the goal of 510 mg/L BOD. Contrary to the Petitioners' perceptions, the treatment efficiency is improved with the system that is under review. Petitioners believe that the bench and pilot scale testing not only is unrepresentative of the full-size DAF system, they also believe that the full-size system represents a lesser quality of treatment. In this regard reference is made to features which would adversely affect the treatment efficiencies. The first of those pertains to leachate which drains from beneath the sludge drying beds and is recirculated to the existing sump pit and added to the waste stream. Sludge which sits in the drying bed does decompose and causes biochemical reactions to occur, as Petitioners suggest. Moreover, no specific testing has been done of the leachate to ascertain the ammonia concentrations, pH or other chemical characteristics. Nonetheless, given the intention to clean out the residual matter within the sump pit frequently, and the flexibility to make that cleanup more routinely, and the fact that this amount of leachate is comparatively small in its ratio to wastewater which is being sent through the system for treatment, the leachate is not found to be an unmanageable problem. Nor is the sludge a problem. Likewise, the amounts of heavy metals within the leachate can be accommodated. Concerns expressed by the Petitioners related to the organic materials in the primary mix-aeration tank that is being returned to the sump pit can also be dealt with by the evacuation of the materials in the bottom of the sump pit. This can be achieved more frequently than on a weekly basis if that becomes necessary, and in doing so avoid problems with concentrations of ammonia, bacteria, amines, sulfides and general organic decomposition products. These materials which are returned to the treatment process as wastewater reintroduced into the primary mix-aeration tank can be adequately addressed in the subsequent treatment that occurs by reaeration, the use of the chemicals and DAF flotation. The retention inherent in the sump pit, primary mix-aeration tank and sludge drying bed has a potential to cause problems with ammonia build-up; however, the problems can be satisfactorily addressed, as well as potential problems with other toxic substances in the effluent, by routinely taking the residual material in the sump pit and sludge drying bed out of the treatment system. While the specific chemicals and precise dosage rates to be used with a full-size DAF system remain open, the basic concept of chemical treatment has been identified sufficiently. The precaution that is necessary is to make certain that close monitoring is made of the results of changes in the chemicals and dosage rates. Likewise, special attention should be paid to the implications of adjustments in the pH of the effluent to make certain that compliance is achieved with the Class III water criterion related to changes in pH above background. Adjustments can be made without violating Class III water standards related to pH. In testing that was done pertaining to the electroflotation effluent, a number of other chemicals were observed, to include trimethylamine, dimethyl sulfide, chloroform and other hydrocarbons. There is some indication of the presence of dichleoroethane, ethylbenezene and other aromatics. The possibility exists that these substances may also be products within the DAF effluent. In that event, the critical question would be whether they have any adverse effect in the sense of influences on the ability of the effluent to pass bioassays and the ability of the effluent to comply with standards related to other parameters such as dissolved oxygen, BOD, and TSS. The routine testing which is called for by the draft permit, which is deemed to be appropriate, would create a satisfactory impression of the materials set forth in the paragraph in the sense of the implications of their presence and allow any necessary adjustments in treatment. While the effluent produced in the testing on the part of the Applicant is different, it is representative, and the treated effluent which will be produced in the full-scale system will be of a better quality and present less adverse impacts than shown in the past testing. Petitioners question whether the Applicant has given a conservative portrayal in analyzing the effluent. In particular, it is urged that the Applicant claimed to be vying for use of the bench scale testing as a conservative depiction of the results of treatment. In this connection, the impression given in the hearing was that of ascendancy in treatment efficiency beyond the use of bench scale, pilot scale and ending in full-scale treatment. As pointed out by Petitioners, in making his case the Applicant has used results of bench and pilot scale testing. As example, use was made of the results of testing in the pilot scale in describing the removal effioiencies related to cadmium, whereas in the measurements of nitrogen concentrations the bench scale result was better than that of the pilot testing and was utilized. The real question is whether the overall testing has given some reasonable indication of success in full-scale treatment. To that end, use of results from either the bench scale or pilot scale testing is appropriate, and those results point to success in the full-scale operation. The system that is proposed is designed to address fluctuations in flow and concentrations in the effluent, given the primary mix-aeration tank contribution and the ability to recycle flow within the DAF unit, with the use of clean tap water. This will allow the Applicant to deal with the remarkable differences in BOD that were seen in the test period, ranging from 900 to 3000 mg/L. COD data as well as BOD data is limited but is found to be an ample depiction of potential treatment efficiencies related to that former parameter. In addition to the aforementioned references to changes in chemicals in the treatment process, Petitioners characterize the use of clean tap water in the recycle flow as being "unsubstantiated speculation." While the use of tap water was discussed in a theoretical vein, that discussion is found to be an accurate assessment of the value of the contribution of clean tap water to the treatment system. Impacts on St. Johns River Ambient Water Quality and Conditions The St. Johns River and the area of the proposed discharge is a riverine estuary. It has a freshwater source flowing from the south and a tidal ocean boundary to the north. The confluence of freshwater flow and tidal influences causes the water movement within this area to be oscillatory. That is to say that at different times the water will flow downstream, to the north, and upstream, to the south. There are occasions in which the net flow over a given tidal cycle will be zero; however, the water is always moving. Conductivity and chloride data indicate that the freshwater flow is the dominant flow compared to tidal influences. The extrapolation of available flow data indicates that there is a net downstream flow of fresh water averaging approximately 6,000 CFS. The St. Johns River at the point of discharge is over one and a half miles wide and relatively shallow with maximum depth in the range of 3 to 3.5 meters. Given the fact of the width and depth in this segment of the river, and the imposition of wind conditions and tidal influence, the water is well mixed and flushed. There is no stratification in this portion of the river. The Applicant looked into the question of current bearing and velocity in depths between two to fourteen feet in the water column. Eleven sampling stations were utilized in arriving at information about current bearing. This observation was over an eleven-nautical-mile stretch of the main channel of the St. Johns River. These stations are depicted on Applicant's Exhibit 38. In this portion of the river the current at all measured depth was flowing up and down the main channel. Within these sections there is no indication of a pronounced subsurface water movement toward the east and west banks of the river. Current velocities within the three stations closest to the POD averaged in the range of 0.5 feet per second and velocities in the other stations found within the main channel were within that range of movement. By contrast current velocities within the embayment areas along the east bank of the river were substantially weaker. DER conducted two studies using tracing dyes poured into the St. Johns River at the approximate point of discharge and monitored the course of dispersement of that dye. During this observation the dye was constantly replenished while being carried on the currents. While the dye remained within the area of the main channel, it stayed on the east side of the river as it moved down river on the outgoing tide in the direction of Smith's Point and the Shands Bridge. As the tide was slowing before the change of tide, the dye drifted for approximately two hours in the immediate vicinity of the point of discharge. The DER dye study was a fairly gross measurement of the direction of water movement within the river beyond the point of discharge. It tended to confirm that the water flow was basically up and down river, depending on whether the tide is incoming or outgoing. The studies were not sufficiently refined to speak with any certainty on the possibility that some part of the flow regime would move toward the east or west bank of the river. Nonetheless, in examining the nature of the shallow embayment areas along the banks of the St. Johns River, they are not seen to be subject to the basic flow regime that is occurring in the main channel during tide events. The bathymetry in this area is such that if the main flow regime was having some influence on the embayment areas, the depths within those embayments would be more similar to the depths found in the main channel of the river. Petitioners have employed a number of dye and drogue measurements to try to give a more accurate depiction of the influence of flow within the main channel upon the dispersion of effluent upon discharge and the possibility of those pollutants reaching the embayment areas. While there is no dispute over the fact that Trout Creek is a tributary to the St. Johns River with some tidal influences being shown in that Creek and there is no dispute that water from the St. Johns River flows in and out of Palmo Cove and Trout Creek, there does not appear to be a significant flow of water from the St. John River into the cove and creek from the main channel, in particular from the area of the point of discharge. One of the witnesses of the Petitioners, Sandy Young, did a dye procedure in which a plume was allowed to develop over a distance of approximately 1,000 feet. Although some slight lateral variation was shown in the dye plume, it did not identify a basic flow pattern toward the embayment areas on the east side of the river. The DER dye study was over a distance of some eight thousand feet and also showed some minor lateral variation. Both of these dye studies tend to show a basic flow pattern within the main channel. The dye study run by the Petitioners' witness White gave the same basic depiction as seen in the studies by DER and Young and did not identify a flow pattern out of the main channel toward the embayment areas. In the drogue studies run by Young three Chlorox bottles were filled to 95 percent of volume with water and released at the point of discharge. They were followed for a period of five hours. They moved initially with the outgoing tide toward Jack Wright Island and then when the tide slowed, the drogues slowed. When the tide changed with the incoming tide, the drogues moved toward the center of Palmo Cove. The drogue studies by Young do tend to indicate that some water was exchanged from the main channel at the point of discharge and the embayment areas. It is not a very exact measurement as it only deals with the surface area of the water column, given the wind and wave conditions existing on that occasion. It is in no way representative of the flow direction of the rest of the water column. Therefore, although it may tend to identify that some of the pollutants leaving the point of discharge may find their way to Palmo Cove, it does not establish that quantity of that pollution dispersion and the significance of that dispersion. Based upon this evidence it cannot be seen to be so revealing that the assumptions made by the applicant in trying to identify the dispersion characteristics of the effluent at point of discharge are negated based upon the results of the drogue study. The drogue study which Young did and the observation of the movement from Smith's Point to Little Florence Cove are no more compelling than the dye studies done at the point of discharge. When the Petitioners suggest that there is some influence by centrifugal force pushing the water to the outside of the curve toward the eastern bank, they are correct. However, the contention by the Petitioners that the incoming and outgoing tides sweep to the eastern shoreline of the St. Johns River moving toward Pacetti Point, Palmo Cove, Florence Cove and Smith Point is not accepted. Again, the general flow regime is up and down the main channel of the river and not primarily to the eastern bank. Finally, the fact that the Tetratech data produced for the benefit of the Applicant showing the flow pattern within the overall water column, which indicated that the general direction is the same at the top or bottom of the water column, did not tend to identify the fact that pollutants throughout the water column will be dispersed into the embayment areas from the point of discharge. The data collected in the main channel seem to establish that the water was flowing up and down the channel at depths below the surface. The question becomes whether the amount of pollutants that are being brought into the embayment areas is in such concentrations that they tend to cause problems along the shoreline, especially as it pertains to dissolved oxygen levels. From the facts presented, this outcome is not expected. Levels of dissolved oxygen in the St. Johns River can vary in the natural condition as much as 2 to 3 mg daily. These variations are influenced by algal activity and are not uncommon in Florida waters. Dissolved oxygen is essential to aquatic life. Optimum levels of dissolved oxygen for the fish population of the river are in the neighborhood of 6 to 8 mg/L. DER has established a minimum DO standard of 5 mg/L for Class III waters such as Trout Creek, Palmo Cove and the St. Johns River. This standard is designed to achieve uniform compliance throughout water column at whatever time the measurement may be made. DER, by the employment of this rule, is attempting to deal with those instances in which, in view of the dissolved oxygen level, aquatic organisms are placed under greater stress. The lowest DO concentration expected is normally seen in the summer in July, August and September. DO concentrations in the water column are expected to be highest at the surface area and lowest near the bottom. Measurements near the bottom are significant in this instance because the discharge will occur approximately one foot off the bottom of the river. The Applicant took DO measurements of the area in question during the spring of 1984 over a period of three days. These measurements were taken at a time when a better quality of dissolved oxygen might be expected as contrasted with circumstances in the summer. With the amount of wind involved impressive levels of reaeration were also occurring. These measurements showed that in all stations DO levels were at least 5.0 mg/L at all depths. A study by Applicant's consultant Environmental Science Engineering related to a diurnal event for dissolved oxygen was taken approximately one kilometer downstream from the point of discharge in August 1985 and did not reveal any measurements below 5.0 mg/L. The river was choppy on that day and this would improve the quality of dissolved oxygen. Historical data by DER related to water quality at Picolata, which is south of the POD in the St. Johns River, reveals average DO levels of approximately 6 mg/L. Historical water quality data collected by the Florida Game and Freshwater Fish Commission near Green Cove Springs, which is several kilometers north of the point of discharge, indicated average DO levels in compliance with water quality standards. Diurnal data from near Green Cove Springs did not show any history of DO values below the state standards. There is other historical data, however, which indicates that DO concentrations in the general vicinity of the point of discharge do go below 5.0 mg/L. Game and Freshwater Fish Commission data indicate that the readings below 5.0 mg/L could occur as much as 10 percent of the time. This relates to the study done at Green Cove Springs. There does not appear to be any particular pattern to these events of low DO violations other than the expectation of their occurring in the summer months, occurring more frequently in the lower depths of the water column and in areas which are shallow with limited flow. The summer circumstance is one in which there is a possibility of very heavy rainfall followed by hot weather with overcast skies and no wind, and the DO values go down in that set of conditions. The DO values are, in addition to being lower near the bottom of the water column, likely to be lowest in the evening or early morning hours and persist in length of time from eight to ten hours. Some of the Florida Game and Freshwater Fish Commission data from Green Cove Springs depicted some DO concentrations as low as 1.8 mg/L at the bottom and 2.1 mg/L at the surface. The low readings that were taken at Green Cove Springs occurred in September 1979 after Hurricane David had created unusual conditions in the upper St. Johns River as to effects on DO. The same report indicated DO concentrations at eleven stations in the lower St. Johns River in July and September 1982 were in the range to 4.0 to 4.5 mg/L respectively. This particular data is not particularly valuable in view of the location of those stations. There are occasions when the DO concentration at the point of discharge could go below 5 mg/L and could be as low as 2 mg/L on the bottom, but this is not a routine occurrence and would not persist. The Petitioners' consultant Young had taken certain dissolved oxygen readings at the point of discharge in April 1985 and found compliance with the 5 mg/L standard. At other times he and the consultant white measured substandard dissolved oxygen concentrations at the point of discharge. On July 20, 1985, white collected water samples at the surface and at two feet above the bottom and determined that the readings were 4 mg at the surface and 3 mg near the bottom. On August 10, 1985, Young measured DO concentrations of 4 mg/L near the bottom. On August 30, 1985, Young measured DO values of 4 mg/L at the point of discharge. Young had also measured DO concentrations at Green Cove Springs on August 10, 1985, and discovered readings as low as .5 mg/L and ranging up to 3.8 mg/L. A downstream measurement away from the point of discharge in the main channel made on August 10, 1985, by Young showed a dissolved oxygen reading of 4 mg/L. In these August measurements Young had discovered a number of readings that were in compliance with the 5 mg/L requirement. Again on September 5, 1985, Young made a measurement of dissolved oxygen near the bottom of the water column at the point of discharge which was 5.3 mg/L. Young's measurements of dissolved oxygen at the surface and in the intermediate depth, typically were above 5 mg/L. Bottom readings taken by Young in the main channel of the river and to some extent in the embayment areas were extracted from the soft detrital materials, the place of intersection of the river bottom and the water column. DO levels in these anoxic materials would tend to give lower dissolved oxygen readings and, to the extent that this anoxic material remains in the test probe while taking measurements toward the surface, would have an influence on the readings, making them appear lower than would be the case if the anoxic sediments were not present in the test device. These effects were not so dramatic as to cause the rejection of the data collected by this witness. Some explanation for lower DO readings at the point of discharge can be attributable to the fact that the anoxic material associated with high benthic oxygen demand on the bottom reduces the dissolved oxygen in the water column. Although Rangia clams were present at the point of discharge and they are capable of living in an environment of low salinity and low DO, they are likewise able to live in higher ranges of DO and their presence cannot be regarded as meaning that the dissolved oxygen levels are consistently below 5 mg/L. Petitioners' consultant White opined that there would be a very frequent violation of DO standards at the point of discharge, approaching 25 percent of the time. Considering the facts on the subject of dissolved oxygen in that area, this opinion is rejected, as is the opinion that DO concentrations will go below DER standards most of the time in July, August, and September. Young believes that a more involved study of worst case conditions would reveal DO violations throughout the column in the center of the river. The data that was presented was ample to demonstrate that violations would not be that widespread. Nor is the opinion of the consultant Parks on the subject of DO violations, to the effect that they will occur on many occasions accepted. In the Palmo Cove area it is not unusual to see some DO readings below the 5 mg/L standards. The E.S.E. group found substandard DO conditions in Palmo Cove at sampling Station 1 in September and October 1984 and some instances in April and May 1985. DO concentrations were found in the range of .4 and .6 mg/L in August 15 and 30, 1984, respectively, with DO concentrations of 1.8 and 2.1 mg/L reported on October 4 and October 29, 1984, respectively. DO violations in four out of eight checking periods between April 25 and May 24, 1985, were shown in the Palmo Cove area. Measurements taken by the consultant white showed 3 mg/L at the surface and 2 mg/L at the bottom on July 28, 1985. The consultant Young also made a measurement of 3.2 mg/L of dissolved oxygen on August 10, 1985, in a mid-depth reading in the Palmo Cove area. On September 5, 1985, he found a DO reading of 4.0 mg/L. At those places along the eastern shoreline of the St. Johns River and the relative vicinity of Florence Cove, Jack Wright Island, Little Florence Cove and Colee Cove, low dissolved oxygen readings were found, that is below 5 mg/L. These coves can be expected to have substandard readings frequently during the summer period, based upon measurements taken by the consultant Young. In the conduct of the drogue study related to the Chlorox bottle, the consultant Young in tracking the path of those bottles, found a couple of locations in the path of the drogue which were in the range 2.8 to 4.2 mg/L and 2.0 to 4.6 mg/L. The influences of the discharge will not reduce DO in the embayments. The ambient conditions for BOD in the area where the discharge is contemplated is relatively low and there is no thermal or saline stratification even in the summer months. Nutrient concentrations in this part of the St. Johns River are as indicated within the Applicants Exhibit A-4(B)(3) and at present are at such levels as to promote a healthy fish community. There is algae production that can be sufficient in some areas within this section to cause algae blooms. Algae blooms are not found to be a routine occurrence. Algae blooms reflect higher levels of nitrogen and phosphorus. The consultants Young and White have seen algae blooms in the St. Johns River away from the general area of concern, both upstream and downstream. Should those algae blooms occur, they would promote significant rises and falls in DO concentrations. In Palmo Cove and the St. Johns River, supersaturated DO concentrations have been detected and they are indications of high rates of primary algal productivity. The circumstance of supersaturated conditions, related to dissolved oxygen, can be the by-product of an algal bloom. The concentrations of nitrogen range from an average of 1.42 to a maximum of 2.54 mg/L. Nitrogen concentrations of 1.4 mg to 1.5 mg/L are optimally advantageous for fish production. Significant increases above those levels would cause the decline of the fish population. Total phosphorus concentrations in the ambient waters are high. Concentrations in excess of 0.1 mg/L of total phosphorus are regarded as a indication of eutrophication and the average concentration here is measured as 0.3 mg/L with a maximum ambient concentration found at 0.52 milligrams per liter. There is significant algal growth in the inshore areas and an indication of some eutrophication in the grass beds. The dominant species of algae found in that vicinity are blue-green, which are seen as being nuisance species. The grass beds along the shoreline are basically healthy. On the other hand, some of the public witnesses identified the fact that grass beds and other vegetation have died with the advent of discharge from the Applicant's plant into Trout Creek. This was under a system in which little or no treatment was afforded the effluent. One other public witness indicated that his dock in the Florence Cove area had been covered with a slimy material and algae during the past two years. Significant grass beds are found along Jack Wright Island and in other areas along the eastern shoreline of the river. These grass beds are important as fish habitat to include nursery areas, areas for various juvenile species of fish and other organisms. Some of these grass beds are showing signs of environmental stress, and nutrient loading can contribute to that stress. Some of the grass beds are covered with higher amounts of algae, duckweed and periphyton than are desirable. The duckweed had floated into these areas from other locations and can be expected to move away. The presence of algae is an indication of nutrient loading. The presence of duckweed is not a product of nutrient loading in the sense of the production of the duckweed at the site where they were found along the shoreline. The area in question between Pacetti Point and Shands Bridge serves as a nursery in a sense of providing habitat for juvenile species of fish and other organisms. The grass beds along the shoreline provide habitat for feeding and breeding related to juvenile organisms, to include such species as bass and shrimp. Juvenile catfish are found within the deeper portions of the river as well as croaker and other marine species. There is a high number of juvenile blue crabs in this area of the river and this is a commercial resource. Shrimp are taken by recreational fisherman in the area of the North Shore Pacetti Point. Clam beds are also present near the point of discharge. Juvenile and adult manatee have been seen in the St. Johns River and in the area near Jack Wright Island. Manatee have also been observed in Trout Creek at a time before the operation of the Applicant's plant and at times following the cessation of operations in June 1985. During the course of the operation of the Applicant's plant, when raw effluent was discharged into Trout Creek, fish kills were observed. Those events had not been seen prior to the operation of the plant. Indications are that fish were killed in the creek due to the use by the Applicant of fly bait, which made its way into the water. Dispersion Modeling of Water Quality Impact In order to gain some impression of the influences caused by the dispersion of the pollutants within the effluent, the Applicant through its expert employed several modeling techniques. DER was made aware of this modeling as it developed. A far-field model was used to calculate what the long-term or steady state impacts of the treated effluent would be on the ambient water quality. In trying to identify the influence of the discharge, measurement of metals were taken based upon an assessment of long term increases. BOD, which breaks down and consumes oxygen over time, was examined in the sense of the long term effects as to DO deficits. In essence these projections were superimposed over the ambient condition to gain an impression of the adjusted ambient values, taking into account the influence of the discharge. The Applicant also ran a plume model which was designed to calculate spreading and dispersion of the treated effluent within the zone of initial dilution or mixing zone at the point of discharge. This model responds to the discharge configuration. Through the use of computer calculations, it was established that a five-point diffuser with port openings of 0.75 inches in diameter angled upward at ten degrees would result in an effluent dilution ratio of 28.5:1 within two meters of the point of discharge. The calculated impacts of the plume model were superimposed upon the adjusted ambient water quality conditions set forth in the far-field model in order to determine net impact upon the receiving waters within the mixing zone. A third model was used, referred to as the lateral diffusivity model. This model is designed to calculate the six-hour or short term water quality impacts of the treated effluent when it moves from the zone of initial dilution during flood and ebb tide conditions. By estimating dispersion rate, this model predicts what dilution would occur in the path of the effluent plume. These impacts were then superimposed upon the adjusted ambient water quality conditions to determine the total impact in the path of the plume. The modeling work by the Applicant's consultant is a reasonable depiction of the predicted impacts of the pollution on the ambient conditions. The calculations used in the far-field model assumed a freshwater flow of 2,000 CFS. This assumption in the far-field model satisfactorily addresses worst case flow conditions related to seven-day, 10-year low flow. The temperature utilized in depicting ambient water was 30 degrees centigrade when employed in the far-field and lateral diffusivity models. This corresponds to warm weather conditions, which are more profound in describing effects on water quality. The far-field and lateral diffusivity models assumed that the treated effluent discharged from the pipeline would have a BOD concentration of 665 mg/L. This is contrasted with the maximum concentration allowed by the draft permit, which is 510 mg/L, which is the expected amount of BOD. This tends to depict the impacts of the discharge more conservatively. The model assumes the BOD loading of 2,720 kg per week, equating to an average discharge concentration of 665 mg/L if the plant operates five days a week on an eighteen-hour day. The reaeration rate and NBOD and CBOD decay rates used in the far field and lateral diffusivity models are acceptable. Likewise, the longitudinal dispersion coefficient that was used in the far-field model is acceptable. The standard modeling methodology in this process calls for an assumption of a 1.33 growth rate of the plume in the lateral diffusivity model. The Applicant's consultant decided to use a lower constant diffusivity growth rate. As a consequence, less lateral spreading is depicted. With less lateral spreading, less dilution is shown, and the impacts predicted by the model are exaggerated. One of the parameters of the plume model has to do with river flow which causes some turbulence and also brings about dilution. In this instance the plume model calculations assume stagnant conditions which is a more conservative assessment. As the Petitioners have suggested, the modeling to explain the impacts of dispersion of the pollutants is not designed to give precise calculations of the DO deficit at each point in the river along the eastern shoreline. It is indeed an estimate. The estimate on this occasion is reasonable. Although DER performs mathematical analysis of dispersion of proposed discharge in some cases, it did not do so on this occasion. Nonetheless DER was satisfied with the present choice for modeling the dispersion characteristics of the discharge. Although the models utilized were not subject to exact calibration by measurement of the dispersion at the site, the information gained by the Applicant prior to the imposition of the modeling techniques was sufficient to develop the models and to give a theoretical verification of the expected impacts from the discharge. The Applicant's belief that the maximum DO deficit caused by the discharge will not exceed 0.1 mg/L is accepted. The dissolved oxygen level in the effluent at the point of discharge will be above 5 mg/L. The Applicant's choice of reaeration rates, CBOD decay rates, NBOD decay rates, discharge rate from the pipeline, hours of operation, average reversing current speed, net non- tidal flow, non-tidal velocity, time lag before NBOD decay, maximum tidal velocity, and other variables and assumptions within the models were acceptable choices. Although the possibility exists of an occasional 5 1/2 day operation in which 10 additional hours of operation are added, this would not be so significant as to set aside the predictions as to the pollutant dispersion. The Applicant's consultant who modeled the dispersion rates did not conduct dye studies to verify or calibrate the actual dispersion in the river. One of the dye studies indicated a lateral spreading rate which was less than that predicted by the model. Notwithstanding this revelation, the overall techniques used by the Applicant in predicting lateral spreading rate are sound and do not present a risk of a greater DO deficit than was predicted based upon incorrect assumptions as to lateral spreading rates. The Applicant's consultant's use of 2,000 CFS as the net non-tidal low flow was a more convincing estimate than the field data collected by the United States Geological Service, given the paucity of information about the flow conditions within the St. Johns River. The Applicant's choices in describing maximum tidal velocities and average velocity are accepted. The critique of the modeling efforts done by the Applicant that was made by Petitioners' consultant, Dr. Parks, in which he concludes that the DO deficit is considerably greater than 0.1 mg/L is not accepted. Comparison of Predicted Impacts of Discharge with Statutory and Regulatory Criteria Inside the Mixing Zone Applicant's assumptions about the increase in nutrient concentrations in the St. Johns caused by the discharge are accepted. This is based on the assumption of a nitrogen value of 52 mg/L which was achieved in bench scale testing of the effluent and which can be achieved in the full scale operation. As the effluent is discharged from the diffuser within the mixing zone, there will be some turbidity problems in that the bottom near the point of discharge. The soft silt there is easily resuspended. When the discharge is concluded, the material will settle back to the bottom. There will be further resuspension when the operation commences again and there is a discharge. The transport of these suspended materials is limited in that the water velocity associated with the discharge is quickly dissipated. This phenomenon will not cause adverse environmental impacts. The mixing zone does not include an area approved by the State of Florida, Department of Natural Resources for shellfish harvesting; it does not exceed the presumptive maximum size set forth in Rule 17-4.244, Florida Administrative Code. Nor does it include an existing drinking water supply intake or any other existing supply intake that would be significantly impaired by the proposed mixing zone. The water in this area is of sufficient depth that it will not support grass beds that are associated with a principal nursery area, such as pond weed, midgeon grass, manatee grass, turtle grass or eel grass which are used to support nursery activities. These grasses are normally found inshore. Although juvenile fish are found throughout this reach of the St. Johns River, and for that matter in the entire lower eighty miles of the St. Johns River, the mixing zone is not of such dimensions that it will preempt the health of juvenile fish. Most of the freshwater fish in this system use the littoral areas for reproduction. Marine and estuarine species do not reproduce in the St. Johns River. There is some reproduction that is occurring with some species, such as catfish. Given the size of the mixing zone, no significant adverse effects will occur with the established community of organisms in this portion of the river. The mixing zone will not otherwise impair designated uses of the St. Johns River. The treated effluent will not create a nuisance condition or violate any other DER standards that apply within the mixing zone. With the advent of the full scale facility, maximum, average and chronic toxicity criteria can be reasonably expected to be met at the point of discharge, within the mixing zone and at the boundary of the mixing zone. As described before, the effects of sediment transport upon discharge are localized. The proposal for a mixing zone takes into account Rule 17-4.244, Florida Administrative Code, in the sense of addressing present and future sources of pollutants and the combined effects with other pollutants or substances which may be present in the ambient waters. One of the concerns which DER has about wastewater is the effect which that pollutant has on organisms within the environment. To gain an impression of that influence, testing is required to establish whether the wastewater is acutely toxic. The testing is known as bioassay assessment. While this assessment is normally done after the grant of a construction permit, when confronted with uncertainty about the quality of the effluent, some testing is beneficial prior to the grant of a construction permit. This is especially true given DER's experiences in dealing with raw effluent of several of the scallop processors, to include Homer Smith, which showed that the raw effluent was acutely toxic. This acute toxicity testing is done by placing test organisms into aquaria containing the effluent and measuring survival of those species over time. Results are described in terms of a measurement of the concentration of the effluent at which 50 percent of the organisms are killed during a prescribed test period. In static testing the organisms are simply exposed to the effluent for the requisite period of time. By contrast, a static renewal test calls for the effluent to be replaced with another sample of the effluent at various intervals within the test period. Finally, a flow through bioassay test calls for a continuous stream of fresh effluent to be introduced in prescribed concentrations over the duration of the test. A bioassay assessment in the static condition was performed related to DAF pilot scale effluent that was collected on April 19, 1985. In this instance Daphnia magna were used as test organisms and demonstrated a survival rate of greater than 50 percent in a 100 percent concentration of effluent over a period of 96 hours in the setting of static and static renewal tests. That survival rate was also shown in lesser concentrations of effluent as well. The April 19, 1985, sample was also used in testing the response of Pimephales promelas. These test organisms did not survive either in the static or static renewal tests. While an hypothesis has been made that acute toxicity was experienced in this test organism attributable to build-ups of ammonia, which is greater with this type of organism than with the Daphnia, due to larger biomass which allows for a greater number of ammonia generating bacteria to be presented in the test aquaria and the fact that the Pimethales excrete more ammonia, these differences do not definitely explain why the Daphnia survived and the Pimephales did not. In the series of static renewal bioassays performed on the wastewater that was collected at the plant on April 29, 1985, and shipped to Lenox, Massachusetts, for bench scale treatment, the test organisms of both types failed to survive for 96 hours. It was discovered that during the course of the test period, levels of ammonia rose rapidly. Trace metals in the treated effluent are principally in the form of stable species, as opposed to free ions. These constituents standing alone are not likely to have caused the mortality in the test organisms. The effect of decomposition of the organic constituents in the waste stream is the most likely explanation of why the bioassays of pilot and bench scale treated effluent did not lead to a satisfactory result. Unionized ammonia, a by-product of organic decomposition, is found to be a principle player in the explanation of why the treated effluent was acutely toxic to the test organisms. The exact cause of toxicity has not been precisely identified. Given the complex nature of the effluent, other potentially toxic substances such as sulfides, amines, and other organic compounds could have contributed to the demise of the test organisms. Moreover, toxicity can increase with combinations of chemicals acting in a synergistic fashion, making their combined effects more devastating than the effect of any single substance. Having in mind the fact that ammonia is a major problem in the survival of test organisms subjected to a bioassay, the question becomes one of what may be done to remove ammonia. The production of ammonia in wastewater would depend upon the presence of bacteria. The proposed DAF system removes substantial numbers of bacteria, thereby limiting the possibility of ammonia build-up, if bacteria are not allowed to recolonize in some part of the system prior to discharge. As discussed before, reduction of bacterial activity can be achieved within the proposed treatment system. This is unlike the experience with the bench scale and pilot scale testing that was done on the effluent in which a substantial amount of time transpired before subjecting the test organisms to the effluent and in which a substantial amount of time transpired while the test organisms were being subjected to static and static renewal procedures with the same effluent. The time intervals contributed to the build- up of toxic levels of ammonia in the effluent. The system which is proposed in this instance can avoid the problem of time as it relates to the build-up of levels of ammonia. To further reduce the influence of retention of the waste product, flow through bioassay testing would be the most appropriate measurement of the survivability of the test organism in that it would be responding to real case conditions pertaining to the quality of effluent and its potential toxicity. Under these circumstances, it is reasonable to believe that in a flow through bioassay test of the full scale treatment system, the test organisms could survive. This determination is reached given the reduction in retention time compared to the bench and pilot scale testing, which reduces ammonia, with further ability to reduce ammonia by frequent removal of residual materials from the sludge drying bed and sump pit and taking into account basic improvements in treatment efficiency associated with the full scale system. In addition, the pH of the effluent can be regulated to avoid toxicity in the ammonia which is associated with inappropriate balance within the pH. While a 96-hour LC-50 cannot be calculated with the results of bench scale and pilot scale testing, a reasonable possibility exists for the establishment of that measurement with the advent of a flow through bioassay. There is sufficient similarity between the effluent in the pilot and bench scale testing and the expected effluent in the full-size system for the bioassay testing that was done in those limited systems to give a meaningful indication of the probability that the Applicant can pass a flow through bioassay. Applicant can be reasonably expected to produce an effluent in the mixing zone which will not exceed the 96 hour LC-50 for acute toxicity. As with the circumstance of ammonia, pH can be controlled within the system to address the implications of changes in pH as it pertains to other pollutants in the wastewater. Ammonia production can be influenced by the amount of alkalinity in the effluent and the receiving waters. Alkalinity has not been measured thus far. Alkalinity could be established for the effluent and receiving waters and dealt with if it was suspected as being an explanation of problems with the build up of ammonia which might exceed DER standards. The discharge from the Applicant's plant will not cause long-term problems with low DO, high nutrients, algal imbalances, and chronic toxicity. Outside the Mixing Zone Those constituents within the waste stream, to include those for which a mixing zone was sought, will comply with applicable water quality standards at the boundary of the mixing zone. The dissolved oxygen deficit at its maximum can be expected to be in the neighborhood of 0.1 mg/L and will be exerted somewhere in the range between 1 and 2.5 km downstream of the point of discharge across the width of the plume in worst case conditions. This deficit is not of a dimension which is easily detectable. The implications of that deficit are difficult to perceive in terms of tangible environmental consequences. While a deficit in the range of 0.1 mg/L has some relevance in the DER permitting decision, that deficit as it is dispersed is not expected to cause or contribute to violations of water quality standards in the main channel of the river or in the inshore and embayment areas. While it is true that there are periodic fluctuations of dissolved oxygen below 5 mg/L, DER, as a matter of present policy and professional judgment believes that in this system which evidences characteristics of a clean well-flushed, unstratified water body occasional readings of low DO are not regarded as an indication of violation of water quality standards. This speaks to the main channel area of the river where the only quantifiable influence is expected. The facts presented in this case support the soundness of this policy choice. Petitioners presented the testimony of former officials within DER, namely Parks and Young, who stated that dissolved oxygen standards of 5 mg/L are applied at all times and at all places. They felt that the DER policy was to the effect that permits would not be granted for discharge in any circumstance where the DO concentrations are substandard in the ambient waters, regardless of the amount of decrease or deficit that would be promoted. Parks spoke of the availability of site specific alternative criteria, variances, exceptions or exemptions from the terms of the water quality rule. Having considered these remarks, the present DER policy of allowing the permit to be granted in the instance where occasional violations of ambient water quality standards related to 5 mg/L occur, in the face of the small deficit which is involved in this case, is the better choice. Further, it is a choice that is not so inconsistent with prior practices as to be arbitrary in nature. Finally, DER's position that it would be unadvisable to require a request for site specific alternative criteria, variances, exceptions or exemptions in circumstances such as this case is accepted, when taking into account the problems which would be presented to the agency in administering the permit program, should each Applicant who is confronted with occasional violations below standards for dissolved oxygen have to seek extraordinary relief. While the facts do identify that some pollutants can reach the embayment areas on the eastern shore, the facts do not depict a circumstance in which the amount and quality of that effluent will be such that it will cause or contribute to dissolved oxygen violations in those areas. The water quality in the embayment areas is lower than that in the main area of the river due to inadequate flushing. The areas inshore do not interact with the main channel in a way that would take advantage of the faster moving currents found in the main channel as this interaction might promote a better quality of water. In view of the situation in the embayment areas, the Applicant, on advice of his consultants, moved the proposed location of the discharge into the main channel away from the areas which were under greater stress in terms of dissolved oxygen values and in doing so avoided damage to these areas. The current velocities in the area east of the main channel are weak. There is a substantial distance from the point of discharge to the inshore areas. As the effluent moves toward the inshore or nearshore areas it will become so diluted it will not have an adverse influence on dissolved oxygen. Not only the distances involved, but also the fact that water flowing near the surface is well aerated contributes to the dilution of the effluent as it approaches the shore. Although it has been shown that some stress in the grasses along the eastern shoreline has occurred and the existence of blue-green algae has been shown, together with indications of undesirable algal production, the nutrients which are part of the effluent at the point of discharge are not expected to cause an imbalance in the natural populations of flora and fauna or create nuisance conditions or violations of transparency standards. The nitrogen increase could cause an increase in algal production in the order of one percent, which is inconsequential. The treated effluent will not adversely effect biological integrity of the St. Johns River. The benthic microinvertebrate community in this part of the river is fairly low density due to the fluctuations in salinity levels and predation by fish and blue crabs and given the nature of this substrate which is unstable with low levels of dissolved oxygen. The organisms that are predominant have a tolerance to siltation and fluctuations in dissolved oxygen. The treated effluent will not adversely effect the microinvertebrate community. Petitioners point out the fact that when DO concentrations decrease below optimum levels, fish and other organisms suffer. The fish reduce their movement, feeding and reproduction and they are less disease resistant. They are placed in a position of having to leave the area or risk death if the impacts of the decrease in dissolved oxygen are severe. The influence of the effluent at the point of discharge in this project is not expected to have significant impact on fish and other organisms within these topics of concern expressed in the paragraph. Even though the dissolved oxygen deficit extends in amounts below 0.1 mg/L as far as 2.1 km upstream and 4.5 km downstream and within a wide breadth of the center portion of the river, those deficits will not be significant to the water quality. The BOD associated with the discharge, allowing for mixing will not depress dissolved oxygen levels below DER standards of 5 mg/L. The combination of BOD and nutrient discharge will not cause an imbalance of algal production in the river, nor will it contribute to the dominance of nuisance algal species. The BOD nutrient loading associated with the discharge into the St. Johns will not promote significant ecological impacts on the St. Johns River, to include the possibility of more frequent and severe algae blooms, increase in benthic oxygen demand, risk of increase eutrophication, destruction of grass beds or decline in the fishery. With the advent of discharge in the St. Johns DO fluctuations in the river will not be greater nor will there be an occurrence of a swing from substandard dissolved oxygen levels to supersaturated dissolved oxygen. While the discharge from the Applicant's plant contains pollutants such as cadmium, zinc, arsenic, copper and organic decomposition products, the treatment provided the wastewater is expected to overcome any acute toxicity associated with these materials individually or in combination. Chronic toxicity is not expected related to these materials. The effects of these materials are not expected to cause physiological and behavioral responses which are abnormal in organisms such as reduced locomotion and reproduction or increase susceptibility to diseases to include ulceration and increased mortality. Treatment contemplated and provision of a mixing zone will allow compliance with the standards related to cadmium. Reference has been made to a development known as St. Johns Harbor which is in the vicinity of the proposed discharge and can be expected to promote some pollution in Palmo Cove and the St. Johns River. Although St. Johns Harbor development is proceeding through stages of permit review, it does not appear that it has reached a place in which exact information about its implications as a pollution source can be set out. In discussing the St. Johns Harbor Development, Petitioners emphasized that this eventuality and other matters which deal with cumulative impact have not been satisfactorily addressed. There is no indication than any other substantial development or activity other that St. Johns Harbor is contemplated in this area associated with the permit review at hand. St. Johns Harbor eventually hopes to develop 3000 residential units. It has received the approval of the Northeast Florida Regional Planning Council for the initial phase of development. It has been reviewed by the Florida Fresh Water Game and Fish Commission. The developers are proceeding with the project to include the sale of lots. Nonetheless, that development has not reached the phase where its implications would form the basis of a denial of this project based upon the theory of cumulative impact. While Petitioners contend that stormwater runoff from the St. Johns Harbor project will be a problem, assuming an inadequacy in the design which that developer employs to deal with that matter, this eventuality is not expected based on a review on the facts presented. Reference is made to the Ulcer Disease Syndrome which fish in the St. Johns have suffered from. The principal area in which this event has occurred is north of the area expected to be influenced by this discharge. Nonetheless, diseased fish have been found in Palmo Cove. This Ulcer Disease Syndrome is caused by heavy metals and hydrocarbons, and these materials act in league. The advent of additional heavy metals and other pollutants, such as those being discharged from the Applicant's plant could cause further deterioration in the condition of fish suffering from Ulcer Disease Syndrome. Having considered the facts, this outcome is not expected. Ambient levels of 18 other pertinent pollution constituents in the vicinity of the point of discharge were ascertained by the Applicant's consultants on the basis of field observations and historical United States Geological Survey and Florida Game and Fresh Water Fish Commission data. This formed a basis of an assessment of average and worst case values. This information indicates compliance with those parameters for purposes of water quality standards at the point of discharge. Implementation of Construction Permit Permit Conditions Applicant's Exhibit A-10 is a copy of the DER intent to issue the construction permit. It sets forth seventeen specific permit conditions, and these conditions should be imposed in the permit. The following are additional conditions that should be set forth in the construction permit: The operation and maintenance manual required by original Condition 10 shall provide that the DAF treatment system be cleaned regularly with a mild chlorine solution and that the wastewater from this maintenance be placed in a vehicle and carried off the premises for disposal at an appropriate location. This wastewater from the cleanup shall not be discharged from the plant into state waters. The operation and maintenance manual shall provide that a dosage level of chlorine to clean the pipeline that will result in comp- liance with all water quality standards at the end of the pipeline be added to a fraction of fresh water used to flush the system at the cessation of discharges each day. DER must approve this dosage amount before it becomes part of the operation and maintenance manual. The operation and maintenance manual shall set forth a regular schedule for pumping the accumulated sludge or solid materials from the sump pit. The operation and maintenance manual shall provide that as much as 50 gallons per minute of fresh tapwater may be added to recycled wastewater for pressurization. Any discharge created with this addition may not exceed 250 gallons per minute. Any discharge created above 200 gallons per minute shall be consti- tuted only of tap water. Two machine scallop processing operations at the plant will be limited to an average of 18 hours per day and no more than 90 hours in a week. Monitoring in Trout Creek shall continue as specified in paragraph 17(E) of the Consent Order as long as discharges into Trout Creek continue. On each occasion when the DAF treatment system is in operation, the Applicant shall have a fully trained operator on site. The terms of the construction permit shall expire on December 31, 1986. The constructed pipeline shall be leak tested once a month from June to September and every other month during other months of the year. If a leak in the pipeline is detected it shall be repaired within 20 days and retested for leaks within 15 days thereafter. The carrying out of any leak testing and repairs shall hereunder shall be certified by a professional engineer. Pre-pipeline Operations Petitioners have pointed out the fact that when two or more pollutants are present, as in the instance of the effluent discharged by the Applicant's plant, those pollutants tend to act in a synergistio manner. That can exacerbate the circumstance where you find low dissolved oxygen. This is particularly a matter of concern when discussing Trout Creek. This is unlike the impacts of the discharge into the St. Johns River which are not expected to exceed standards or promote adverse effects. The implications of operation within Trout Creek to allow necessary permit review by DER and the State of Florida, Department of Natural Resources can be overcome once the discharge is withdrawn from Trout Creek and may be addressed by DER more immediately if the dissolved air flotation unit, after a reasonable period of adjustment, does not perform in the fashion that it appears to be capable of. In the instance of discharge into Trout Creek, the material discharged tends to remain in that area for a relatively long period in that the creek is small and has very little flow and poor flushing characteristics. DO levels will be depressed, the presence of a deficit in dissolved oxygen caused by the discharge from the DAF unit would increase the probability of fish kills when contrasted with a circumstance where there is no further deficit of dissolved oxygen. Given the explanation of why a fish kill occurred based upon the past use of fly bait by the Applicant and the fact that there is no indication of fly bait in the present plans, a fish kill in Trout Creek in the time of interim discharged does not seem probable. With the advent of discharge into Trout Creek, the possibility is enhanced for algae blooms and increased eutrophication. There would also be some accumulation of toxic substances. Additionally, there would be some influence on juvenile fish which are more sensitive to pollutants and the possibility exists that it could reach levels that are lethal to bass larvae and juvenile sports fish. The creek would lose some of its viability as a nursery and some fish would leave the creek. These events are not irreversible and can be reasonably remedied with the cessation of discharge into the creek. Moreover, as in the instance with the problem with fish kills, if some set of circumstances attributable to the discharge were to occur in such dimensions as to cause long term impacts in Trout Creek, DER could take action against the construction permit. Dissolved oxygen in Trout Creek can be below the 5 mg/L standard. Data of the E.S.E. group showed that at Highway 13 bridge, approximately fifty yards from the plant in December 1984 and January 1985, values were as low as 0.1 and 0.2 mg/L, and readings could be frequently below 2 mg/L at Highway 13. In April through June 1985, periodic surface dissolved oxygen concentrations were in the range of 3 mg/L and as low as 2.4 mg/L. DO concentrations generally found at the bottom of Trout Creek could be as little or lower than 1 mg/L at times. In July 24, 1985, at the time when the plant had not been operating for approximately a month, the DO concentrations were 2.9 mg/L at mid-depth and 0.8 mg at the bottom. Within Trout Creek in the area of the Pacetti marina, Consultant White measured DO concentrations in the range 1-3 mg/L. On August 10, 1985, six weeks after operations had stopped at the Smith facility, DO concentrations were found to be 3 mg at the surface, less at mid-depth and 0 near the bottom. Computer modeling was not done to ascertain the impacts of a discharge directly into Trout Creek from the DAF unit. The modeling done by the Petitioner's consultant, Parks, using some of the concepts considered in the Applicant's modeling for the St. Johns River is inapplicable to the circumstances in Trout Creek. Trout Creek has also served as a nursing ground for reproduction and habitat for young fish. During the course of the operations by the Applicant in the discharge of essentially untreated effluent, the beds of bass and sun fish have not been seen within the creek. Water quality improves with the DAF unit and sediment loading by heavy metals decreases. Trout Creek is a stressed system at present. It has low levels of dissolved oxygen, high nutrient concentrations and the presence of heavy metals in undesirable amounts. The low numbers of pytoplankton species give some indication of a highly stressed ecosystem. The present officials of DER, Palmer, Owen and Fox, expressed their concerns about dissolved oxygen in those instances where there would be a decrease in ambient DO concentrations. This has particular importance in discussing the problems associated with the discharge into Trout Creek, as opposed to the point of discharge contemplated in the St. Johns River, which risk is minimized given the characteristics of that area and the higher readings of ambient dissolved oxygen in that water, as contrasted with low readings within Trout Creek. A literal interpretation of the position of the agency officials would lead to the conclusion suggested by the Petitioners that no discharge should be allowed into Trout Creek, even on an interim basis. However, such a position would be inherently unfair considering the fact that some discharge would occur into the creek before the installation of the pipeline, whether based upon simultaneous permit review by DER and the State of Florida, Department of Natural Resources in the easement case or sequential review as is contemplated in this instance. Admittedly, the amount of time involved in the discharge into Trout Creek increases in view of the severance of the easement case from the present proceedings. This circumstance occurred in view of the desire on the part of the DNR to see the actual treatment efficiencies involved with the dissolved air flotation unit as opposed to the theoretical possibilities of that equipment. In the present situation, it would be a reasonable policy choice for DER to allow an interim discharge into Trout Creek pending the opportunity for DNR to monitor the quality of the effluent produced by the DAF unit and make a decision about the easement, thus allowing installation of the pipeline if the easement is granted. This arrangement contemplates that DER should closely monitor the quality of the effluent produced by the DAF unit, to make certain, after the Applicant has been given the opportunity to make necessary adjustments to that unit, that the Applicant is not allowed to continue to discharge into Trout Creek following this period of adjustment, when it is shown that the Applicant's equipment is not performing as expected. In any event, the discharge of effluent into Trout Creek will continue over a limited period of time and the system can be expected to quickly return to its healthier state after the removal of the discharge from Trout Creek. This has occurred in the past when the operations of the plant ceased and occurred at a time when the wastewater was of a more damaging quality than contemplated by that associated with the DAF unit. In summary, it would be a reasonable policy choice to allow the interim discharge into Trout Creek on this occasion. Dredge and Fill Permit Characteristics of Pipeline Corridor The pipeline corridor encompasses portions of Trout Creek, Palmo Cove and the St. Johns River. The bottom sediments where the pipeline is to be installed are constituted of soft, and sometimes extremely soft, flocculent silt. Although these sediments are easily resuspended, dispersement of these sediments will only occur while the pipeline is being installed. In placing the pipeline, it is the intention of the Applicant to simply allow the pipe to sink into the sediment. The soft substrate is several feet deep in some places within the proposed corridor. Nonetheless, the pipe is expected to stabilize as it sinks into the material. There are places within the corridor where a crusty material may be found on the surface of or just beneath the substrate. These are locations where jetting or mechanical excavation may be necessary. Jetting may also be necessary along the approximately 155 foot stretch of the corridor that crosses the State of Florida, Department of Transportation right-of-way. This requirement would occur in view of the fact that the Department of Transportation mandates that the pipeline be at a minimum of 30 inches below the creek bottom. In those instances where jetting or other mechanical excavation might be utilized, silt screens would be used to control the short term turbidity. In the areas within the pipeline corridor where tree trunks and branches have been found, these obstructions can be removed without incident. Taking into account the nature of the substrate, at the location where the diffuser will be placed at the end of the pipeline, special attention will be given to that installation to avoid having the diffuser settle into the soft silty material. Given the fact that the silty material is several feet deep and the related fact that the Applicant has not done specific testing of the depth, density and compressibility of this silty material, careful attention should be given to anchoring the diffuser and making certain that the exhaust ports within that device are correctly positioned. The need for this close attention is borne out by the fact that a test pipe which was placed in the silty material settled approximately two and a half feet within several weeks. The matter of the security of the diffuser is also critical, given the fact that the diffuser will be located within one foot of the bottom. Through proper installation, the Applicant can avoid having the diffuser settle into the silty material over time. The installation techniques satisfactorily address the potential problems. Projected Impacts (1) Environmental The icthyological and macroinvertebrate communities within the pipeline corridor have been examined by the Applicant in the person of his consultants. It was found that there are a variety of freshwater fishes within Trout Creek, such as large-mouth bass and sun fish, and a moderate density of macroinvertebrates. The St. Johns River proper is dominated by estuarine and marine aquatic organisms. Infaunal macroinvertebrate densities in the area of the pipeline corridor in the St. Johns River are not high. In placing the pipeline, the effects on aquatic and benthic communities within the corridor or upon water quality do not pose a threat to those communities or to water quality. During the installation of the pipeline, some disturbance of the benthic organisms can be expected; however, those organisms will be able to recolonize quickly. The mere presence of the pipeline is not expected to cause long-term impacts on biological resources or water quality. (b) Navigation In the area of the intended placement of the pipeline related to Trout Creek, boating clubs utilize that vicinity for purposes of anchorage. Those clubs have as many as twenty to thirty boats whose size varies from twenty to fifty-five feet in length. Some of those boats carry anchors which can weigh forty-five pounds or more. Typically, in anchoring one of these craft, the anchor rope is tied down and the engines reversed to set the anchor. Although testimony was given to the effect that the anchors being set might puncture the pipeline, given the explanation about the placement of the pipeline and the nature of the pipe itself, problems with puncturing the pipeline as it might interfere with navigation or environmental concerns such as turbidity plumes due to a puncture of the pipeline are not expected. Nor are the activities associated with retrieval of the anchors via the use of electric winches or hoists seen to be a problem in the sense of snagging the pipeline and rupturing the pipeline when the anchors are brought aboard the vessels. In summary, the pipeline will not be an interference to navigation in the sense of boat anchorage or other aspects of navigation associated with boating. Moreover, the Applicant is willing to indicate the location of the pipeline on navigational charts to assist boaters in avoiding potential problems with anchorage. This is a desirable arrangement and should be done. Comparison of Projected Impacts with Statutory and Regulatory Criteria The dredge and fill activities associated with the pipeline are not expected to cause long-term or short-term adverse impact on biological resources or water quality, or are they expected to interfere with the conservation of natural resources or marine productivity or interfere with navigation to such an extent to be contrary to public interest. The placement of the pipeline will not promote unacceptable interference with fish and other natural resources or destroy clam beds or grass flats, such as would be contrary to the public interest. Permit Conditions Appropriate permit conditions are as follows: Installation of the pipeline shall be conducted within Trout Creek only during weekdays. Pipeline installation activities within Trout Creek shall not block navigation. The pipeline shall be constructed within 60 days following the receipt of all necessary approval, to include the grant of an easement by the State of Florida, Department of Natural Resources for the placement of the pipeline over submerged sovereignty lands. All conditions set forth in the DER draft permit. See Applicant's Exhibit A-57.
The Issue The issue concerns the entitlement of GJPS Lukas, Inc. to be granted a consumptive use of water permit from the St. Johns River Water Management District. See Chapter 373, Florida Statutes, and Chapter 40C-2, Florida Administrative Code.
Findings Of Fact On December 7, 1990, the Applicant applied for a consumptive use of water permit under application no. 2-127-0808AN as submitted to St. Johns. The Applicant asked that it be allowed to withdraw water from the Floridian aquifer to irrigate a 240 acre sod farm by the use of four wells and a pipeline ditch irrigation system. This was a new use. On January 9, 1991, St. Johns prepared a technical staff report recommending approval of the application. Petitioner was provided notice of this pending disposition on January 15, 1991 leading to his protest to the grant of the permit. Petitioner's property is adjacent to the Applicant's property. Petitioner has a well which he uses for domestic water needs which is in the vicinity of the proposed project. He also has a commercial fish operation with a number of fish ponds including fresh water ponds. Both these uses may potentially be affected by the proposed consumptive water use contemplated by the Applicant. St. Johns calculated that the irrigation of 240 acres of sod, by calculation using the modified Blaney-Criddle formula pertaining to evapotranspiration, calls for a maximum extraction of 169.4 million gallons a year. In any one month the amount withdrawn should not exceed 37.4 million gallons. The Floridian aquifer at the place where the Applicant proposes to draw water is capable of the production of 169.4 million gallons of water per year and 37.4 million gallons per month without promoting environmental or economic harm. Extraction of this water for purposes of irrigation is an acceptable arrangement in that no wastewater treatment plants are within a five mile radius of the site of the proposed use. Therefore it would not be economically, technically or environmentally feasible for the Applicant to use reclaimed wastewater as a source for its irrigation needs. The aquifer in that area is stable. There was no showing in the hearing by competent evidence that saline water intrusion problems now exist in the area of the proposed site of withdrawal. There was no showing that the withdrawal of as much as 169.4 million gallons per year would cause a saline water intrusion problem. The fields where the Applicant intends to apply the extracted water for irrigation purposes are surrounded by a system of ditches and water control structures to confine the water as applied to the sod and any mixing of that water with any surface or subsurface waters that are contributed by rain events. The ditches and control structures keep the water on the property and prevent flooding downgradient of the subject property. As a consequence flood damage on adjacent properties is not to be expected. On a related issue, the ditches and control structures will prevent water from discharging into receiving bodies of water and thereby degrading water in those receiving bodies such as the fish ponds operated by the Petitioner. The water quality of the Floridian aquifer will not be harmed by the activities of the Applicant in withdrawing this water. In the worse circumstances the well used by the Petitioner will be affected by the Applicant extracting the water from the aquifer to the extent of .25 to .4 drawdown in feet in the well the Petitioner uses. This is not a substantial impediment to the Petitioner's ability to withdraw needed water from the well he uses. The Floridian aquifer in the area in question is semi-confined. The four wells that would be used in withdrawing water for the Applicant's purposes will extract the water at 110 feet below the surface. Between that level and the surface are three confining areas of clay totaling approximately 40 feet in thickness. Those confining units of clay would protect the water at the surface when the Applicant withdraws water and induces a gradient. In particular, the nature of the stratification in the soils in the area in question and the topography are such that the Petitioner's fish ponds, when taking into account the distance between the Applicant's operation and those fish ponds, the clay confining units and the gradient between the Applicant's property and the Petitioner's fish ponds, would not lead to a reduction in the water levels of the Petitioner's fish ponds when the water was extracted by the Applicant. The proposed use by the Applicant would not require invading another use reserved by a permit issued from St. Johns. St. Johns has not established minimum levels or rates of flow for the surface water in the area where the Applicant proposes to extract the water. Nor has St. Johns established a minimum level for a water table aquifer or a minimum potentiometric surface water for an aquifer in the area where the Applicant proposes to extract the water. The surficial aquifer water table beneath the property where the Applicant intends to apply the extracted water should not be raised inordinately should the Applicant follow the best management practice as recommended as special condition No. 9 to the Consumptive Use Technical Staff Report pertaining to this project. Nonetheless if the water table beneath the Applicant's property were to be raised to a level which is too high or if the activities by the Applicant would result in excessive surface water runoff the ditches and water control structures that isolate the Applicant's property would prevent the water level in the Petitioner's fish pond from being increased by the Applicant's proposed activities. The application of the extracted water and the expected flow pattern of water applied to the surface and control of that water is set out in St. Johns' Exhibit No. 5 and described in the testimony of Jack Caldwell Lawrence, Jr., employee of St. Johns and an expert in geology and hydrology. See pages 61 and 62 of the transcript. Concerning water quality in the Petitioner's fish pond, it will not be affected by the Applicant's proposed activities in extracting the water. The gradients and distances between the Petitioner's fish pond and the Applicant's fields do not allow surface water or water in the surficial aquifer, which is groundwater above the confining clay unit, to flow from the Applicant's fields into the Petitioner's fish ponds. Again the ditches and control structures related to the project offer additional protection against a compromise to the water quality in the Petitioner's fish ponds. The Technical Staff Report on this project is an apt description of the project and the necessary conditions to granting a permit which would protect the public and environment. One modification has been made to that report and that modification is appropriate. It changes the intended disposition from one of allowing surface water from the onsite management system to be used as the primary irrigation supply with the Floridian aquifer serving as a supplementary source to one in which the Applicant would not use the onsite management system as a water supply source but would use the onsite management system simply as a discharge holding area.
Recommendation Based upon the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which approves the application for consumptive use of water subject to the conditions set forth in the Technical Staff Report, excepting the need to have the Applicant utilize water from the onsite management system as the primary source of irrigation of its sod. DONE and ENTERED this 4th day of November, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 4th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following discussion is made of the suggested facts set forth in the proposed recommended orders. Petitioner's Facts Paragraphs 1-6 are subordinate to facts found. Concerning Paragraph 7, Petitioner does not have standing to take issue with the quality of notice provided to other adjacent landowners. As to Paragraph 8, the witness had sufficient understanding of the location and nature of the surficial or sand aquifer and the clay confining units to have his testimony credited. As to Paragraph 9 the fact that the witness is unaware of the exact depth of the Petitioner's fish pond does not cause his testimony to be disregarded in deciding that the fish ponds would not be negatively impacted by the activities contemplated in this permit application. As to Paragraph 10, this proposed fact is inconsequential given the de novo nature of this proceeding. As to Paragraph 11, see discussion of Paragraph 7. As to Paragraph 12, it is rejected. As to Paragraph 13, that knowledge was not necessary in determining the outcome here. As to Paragraph 14, it is accepted in hypothetical terms, however, no showing was made that chlorides would increase in this instance and adversely affect the Petitioner's fish based upon the evidence adduced at hearing. As to Paragraph 15, the soil samples from Petitioner's property are inclusive and less reliable that the description of soil in the general area as set forth by the witness for St. Johns. COPIES FURNISHED: Clayton D. Simmons, Esquire Stenstrom, Mackintosh, Julian, Colbert, Whigham and Simmons, P.A. 200 West First Street, Suite 22 Sanford, FL 32772-4848 Michael D. Jones, Esquire 996 Westwood Square, Suite 04 Oviedo, FL 32765 Michael D. Jones, Esquire Post Office Box 3567 Winter Springs, FL 32708 Eric T. Olsen, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429
Findings Of Fact Petitioner began employment with Respondent in November 1983. He was assigned to the Water and Sewer Department as a laborer. In 1986, Petitioner was transferred by the Respondent to the Water and Sewer Department water meter shop to be a water meter repairman. Petitioner continued his employment in that section until the spring of 1993. At that time, Petitioner accepted status under the Respondent's Disability Income Replacement policy. This arrangement is for an employee who is absent due to disability for more than 60 days. He then becomes eligible to receive payment of 60 percent of the employee's regular earnings. From the years 1986 into 1990, Petitioner enjoyed good health. During that period his employee work evaluations ranged from satisfactory to above satisfactory. In 1990, Petitioner developed psoriasis. In the beginning, the condition was controlled through medical treatment. However, in 1991, Petitioner was diagnosed with bladder cancer. As a result, while being treated for the bladder cancer in 1991 and 1992, to include two surgeries, Petitioner was unable to receive medical treatment for his psoriasis. Consequently the psoriasis became more severe. There was a change in supervisory personnel on April 4, 1991, which affected Petitioner's employment status together with that of other employees within the Water and Sewer Department. The change came about when Richard Davis, who headed the Water and Sewer Department was replaced by Henry Hicks. Respondent had found it necessary to replace Davis, because in Respondent's view Davis was not satisfactorily addressing the personnel issues within the Water and Sewer Department. When hired, one of the issues which Hicks felt he needed to address was a morale problem caused by employee perceptions that the Department of Water and Sewer employee rules were not being enforced in a consistent manner. Hicks was of the opinion that this perception existed, in part, because supervisors maintained a casual approach to employee counseling and discipline. Hicks, in his tenure, reminded the supervisors to formalize their procedures in dealing with employee counseling and disciplining. He required the supervisor provide documentation of any disciplinary action whether verbally given or by a written reprimand. This change in direction tended to increase the number of documented incidences of imposition of employee discipline within the Water and Sewer Department. The first employee evaluation which Petitioner received after Hicks' assumption of his position of director of the Water and Sewer Department was in 1991. The 1991 evaluation which Petitioner was given contained positive and negative remarks about Petitioner's work performance. In the spring of 1991, the Water and Sewer Department held a picnic, an activity in which the employees were encouraged to participate. As in prior years the Petitioner volunteered to be a member of the food committee for the picnic and was appointed to that committee. Members of the food committee would serve food at the picnic. At that time, the Petitioner's psoriasis was such that he was noticeably peeling and flaking. Howard Johnson, a supervisor with Respondent approached Hicks and told Hicks that several employees had stated that they, the employees, would not go to the picnic if Petitioner served food because they were afraid that Petitioner's skin would flake into the food. Having been apprised of this situation, upon a date prior to the picnic, Hicks met with Petitioner and told Petitioner what had been reported to Hicks and asked Petitioner to serve the needs of the picnic activity in some other manner than food service. Specifically, the Petitioner was offered the opportunity to help "set up" the picnic area. Petitioner did not accept the alternative offer to assist in the outing. Instead, Petitioner was offended and felt that he was unreasonably singled out due to his psoriasis. Nonetheless, the reaction by other employees to having Petitioner serve food and the response by Hicks to offer an alternative opportunity to assist in the activity did not constitute harassment or unreasonable conduct toward Petitioner. In association with the picnic for the spring of 1991, Bobby Thigpen, a supervisor with Respondent, made a comment to Petitioner about Petitioner's psoriasis and Petitioner's participation on the food committee at the picnic. Although Petitioner was mindful of Thigpen's candor about the subject, Thigpen's remarks contributed to Petitioner's hurt feelings concerning other employees not wishing Petitioner to serve food at the picnic. The remarks by Thigpen were not designed to harass Petitioner based upon Petitioner's physical condition. In addition, Petitioner did not report Thigpen's remarks to his supervisor pursuant to Respondent's "No times relevant to the inquiry, prohibited harassment on the basis of handicap status as well as other protected categories. The policy instructed the employee who believed that he had been harassed to bring the matter to the supervisor or to the Human Resource Department within the organization if the employee did not feel that he could discuss the matter with his supervisor. Respondent's employees are required to attend an annual meeting to review this policy. Petitioner did not complain to the Human Resource Department that he had been harassed by Thigpen through Thigpen's remarks regarding Petitioner's service on the food committee. No other competent proof was offered to the effect that Respondent's employees had made derogatory comments about Petitioner's physical disabilities. Because Petitioner's psoriasis was in a more severe condition, Petitioner would leave flakes of skin on chairs in the Water and Sewer Department break-room. When the Petitioner's co residue they would switch chairs rather than sit in the chair on which Petitioner had left flakes of skin. Although Petitioner found out that the other employees were switching chairs due to the flakes of Petitioner's skin being found on the initial chair, there is no competent proof that any employee ever commented to the Petitioner that the employee would be opposed to the Petitioner eating in the break-room due to his physical condition. Petitioner, together with other employees who were supervised by Dan Miller, had been harassed by Miller at times relevant to the inquiry. In Petitioner's instance, Miller's harassment was not directed to Petitioner's physical disabilities. Some of the remarks made by Miller to Petitioner were that Petitioner was short and fat and further derogatory comments about Petitioner's haircut and clothes. Miller had also called the Petitioner dumb or stupid because Petitioner asked Miller to repeat instructions over the radio that was used for communicating between the supervisor and his respective employees. Notwithstanding Petitioner's contention that he had told Miller that he was having trouble hearing because of psoriasis that had spread to Petitioner's ears, Miller denies that Petitioner had told Miller that psoriasis was affecting Petitioner's hearing, and Miller's testimony is credited. On the contrary, without knowledge of any physical disability concerning hearing which Petitioner had, and without regard for the reaction any other employees which Miller supervised might have, Miller made insulting comments to employees which he supervised when talking to them on the radio. Employees other than Petitioner to whom the insulting comments were directed had no known physical disabilities. James Scarberry, a co-employee who worked for Miller, overheard Miller yell at Petitioner on occasion having to do with Petitioner's job performance, not Petitioner's physical disability related to hearing. Petitioner asked Miller and a co-worker not to smoke in his presence because he had recently had bladder cancer surgery. Petitioner contends that this request was met with laughter and jokes. Miller testified that the request was not met with jokes or laughter. Instead, Miller recalls, and his testimony is credited, that Petitioner complained that Al Nichols, a co-worker, had smoked excessively in Petitioner's presence. The subject of Nichols' and Miller's smoking in Petitioner's presence was discussed among Miller, Nichols and Respondent, and it was agreed that Nichols and Miller would try not to smoke excessively in Petitioner's presence. No medical evidence was presented which tended to identify the necessity for Petitioner to be afforded a smoke environment due to his medical condition or that Petitioner had ever made requests other than that directed to Miller and Nichols regarding not smoking in his presence at work. Petitioner had made requests that he be provided light duty because of the problems he experienced with his knees due to psoriasis. These requests were directed to Miller, Petitioner's immediate supervisor. The requests were not always granted. When Petitioner was turned down for light duty it was based upon the fact that light duty was generally not available in the Water and Sewer Department for any employee. Moreover, at that time, employees in Petitioner's work assignment usually worked alone and it would adversely affect the production of the unit if two repairmen were dispatched to do a job which would ordinarily take only one repairman to complete. Petitioner presented no proof concerning denial of light duty at a time when a physician may have specifically recommended light duty for Petitioner. Concerning discipline directed to the Petitioner, on March 18, 1982, Petitioner stopped at a job site to which he had not been assigned. There he engaged David Lipps, an employee of Respondent, in a conversation. Lipps was a supervisor at the site and the conversation had to do with the meal policy which had been applied at the site. Eventually the conversation became an argument, at which point Lipps told Petitioner that he did not belong at the job site and asked him to leave. Lipps then reported the incident to his supervisor, Rodney Thompson and the matter eventually came to the attention of Hicks. Hicks discussed the matter with the Petitioner and Lipps and concluded that Petitioner had no business purpose for being at the Lipps' job site and that Petitioner was responsible for causing the argument with Lipps. Petitioner was issued a written warning on March 26, 1992. The disciplinary reprimand was not related to Petitioner's physical disabilities. On May 18, 1992, Petitioner received a written reprimand. The reprimand was based upon the Petitioner's conduct while on weekend standby duty. This assignment was in keeping with the periodic requirement to serve on weekend standby. On May 16, 1992, Petitioner was on a standby status with Lipps. Lipps was referred to as the "A" worker and Petitioner was the "B" worker. The "A" worker was in charge of the work team. Petitioner arrived at the first job site 34 minutes before Lipps. When Lipps arrived, Petitioner complained that Lipps was an hour late. Petitioner then told Lipps that he had somewhere else to go that day. Lipps and Petitioner went to a second job and by that time Lipps told Petitioner that he was tired of Petitioner's complaining about having to work that day and concluded that Lipps did not have Petitioner's full cooperation. As a result, Lipps determined to leave the completion of the second job until the following Monday. Lipps reported the incident to his supervisor, Rodney Thompson. Petitioner had been previously counseled about his attitude concerning standby duty. Hicks reviewed the facts surrounding Lipps' complaint and decided to issue a written reprimand to Petitioner for making negative verbal remarks about Petitioner's duties and for failing to cooperate with his supervisor on standby duty. The disciplinary action was not for purposes of discriminating against Petitioner because of Petitioner's physical disabilities. Moreover, Hicks had reprimanded two other employees, Ed Swift and Bob Buckley for making negative verbal comments about job duties. Hicks did not know these other individuals to be suffering from any form of physical disability. In June of 1992, Petitioner applied for and was granted a leave of absence for an unspecified period. By June 2, 1992, Petitioner knew that he would need to go on extended leave beginning June 8, 1992. He failed to inform any of his supervisors that he was going on this medical leave. He did not show up for work on June 8, 1992. Hicks inquired of Petitioner on June 8, 1992, about not telling his supervisor that he was going to be on medical leave. Petitioner responded to the inquiry by indicating that he had told Scarberry, Petitioner's co-worker, of his intention to go on medical leave and that he had told a city clinic nurse that he was going on leave of absence. Hicks pointed out, correctly, that telling the nurse and Scarberry of Petitioner's intentions to take medical leave did not relieve Petitioner of the duty to directly inform a supervisor of that intention. Moreover, Scarberry had told the Petitioner that he, Scarberry, would not be at work the first day of Petitioner's medical leave, making it questionable that Scarberry would have advised a supervisor that Petitioner was hoping to be absent from work that day. Scarberry made Hicks aware that Scarberry had pointed out to Petitioner that he would not be at work on June 8, 1992. Petitioner's assertion that he wrote a note to his immediate supervisor, Miller, regarding the plan to be out on June 8, 1992, if true, is of no utility because the note was not given directly to Miller and was never indirectly received by Miller. Miller had not been at work June 5, 1992, the friday before Petitioner was missing from his job duty on June 8, 1992. Petitioner knew that Miller was not at work on June 5, 1992. As a consequence of not informing a supervisor that he was going to be on extended medical leave, Petitioner was disciplined. The action by Respondent on which Petitioner was given a written reprimand for failure to inform a supervisor that Petitioner was going to take extended medical leave did not constitute discrimination against Petitioner based upon his physical disabilities. Petitioner was allowed to take the extended medical leave. Noel Werner, a secretary in the Water and Sewer Department had also been reprimanded by Hicks for failing to follow proper procedures for obtaining authorization to take medical leave. Hicks is unaware of any physical disability that Ms. Werner may have. When Petitioner took leave in June of 1992, he believed that he would be eligible for Disability Income Replacement. However, in August 1992, Petitioner was informed that the Respondent's Risk Management Department had determined that he was ineligible because he was under the care of a licensed health counselor as opposed to an M.D. or a Ph.D. Carol Ingham, Respondent's Human Resource Director, learned of this circumstance and contacted the Assistant City Manager, Dick Lewis, and requested that Petitioner be granted an exception to the policy of not being eligible for Disability Income Replacement when using a licensed health counselor. As a result, Petitioner's request was reevaluated and he was ruled eligible for Disability Income Replacement through the policy pertaining to that status for the period August 4 through 30, 1992. Concerning his physical condition, in the spring of 1992, Petitioner was diagnosed with osteoarthritis in his knees. This meant he was disabled to do any persistent bending or kneeling, which was a requirement of his employment in the Water and Sewer Department. His condition also disabled him from doing his assigned work because his work as a water meter repairman involved walking distances of a 100 feet or more on a persistent basis and standing all day. Concerning the medical leave of absence which Petitioner took in the summer of 1992, this subject was discussed by Ingham in conversation with the city clinic nurse, Holly McLaughlin. They talked about the stress which Petitioner seemed to be experiencing and the failure to follow the policy of informing his supervisor of his intention to take medical leave. On June 15, 1992, Ms. Ingham met with Petitioner and his wife to discuss Petitioner's stress. At that time, Petitioner reported to Ms. Ingham that Petitioner's supervisor Miller had treated him badly and that Miller had also treated other employees badly. Petitioner told Ingham that Miller had called Petitioner stupid and had been abusive in conversation over the radio. No claim was made by Petitioner that Miller had made comments directed to Petitioner's physical disabilities. As a follow Ingham discussed Petitioner's remarks about Miller's conduct with a number of the Petitioner's co-workers. Ingham decided that Miller had, in fact, yelled and cursed at a number of employees he supervised, to include Petitioner. No other employee reported to Ingham that Miller had made derogatory comments in their presence concerning Petitioner's physical disabilities. Based upon Ingham's findings, Hicks determined to discipline Miller for his conduct directed toward employees whom Miller supervised. Miller received a written reprimand and was given the option of being demoted or seeking counseling through an employee assistance program. Miller opted to go to the employee assistance program. Moreover, Miller was told that if conduct toward subordinates continued that he would be subject to more severe discipline to include discharge. Miller's treatment of the employees he supervises has improved since the imposition of discipline. Petitioner returned to work in August 1992, following his leave of absence for medical purposes. At that time, he was issued a service truck which another employee had been using. Petitioner felt that he should have been issued a new truck which the Water and Sewer Department operated. The truck that Petitioner had been issued was dirty and smelly. Miller told Petitioner that the newer truck was assigned to an employee who needed the larger truck because that employee would be performing heavier work than Petitioner would be called upon to perform. Miller offered to have the truck which Petitioner had been issued cleaned up or detailed. Petitioner declined that offer. Petitioner complained about the truck that he had been assigned to a co-worker, Fred Sauls. He told Sauls that he was going to take the truck he was issued and drive it to city hall to show Ingham, the Human Resource Director. In fact, Petitioner reported the incident to Ms. Ingham. The Petitioner received a letter of reprimand on September 4, 1992, for complaining to a co-worker and Ms. Ingham about an everyday work related problem rather than following the chain of command. Prior to receiving that written reprimand, Petitioner had been specifically counseled by Hicks concerning handling everyday work related problems through Petitioner's supervisor. Those specific instructions on everyday work related problems were not countermanded by the general opportunity which Hicks had described for employees to go outside the chain of command when they did not feel that they would get satisfaction from an immediate supervisor, and the open door opportunity to consult with the Human Resource Director. In this instance, the response from Miller was adequate to meet Petitioner's needs in confronting an everyday work related problem and Petitioner had no reason to complain to Sauls or to complain to Ingham. The written reprimand given to Petitioner was not designed to discriminate against Petitioner based upon his physical disabilities. Hicks and Ingham became aware of the Petitioner's inability to perform his assigned job duties due to his physical disabilities and they looked for other duties that the Respondent might be able to perform in view of his physical disabilities. The only positions that were found for which Petitioner was otherwise qualified and physically able to perform were part-time positions that did not offer medical benefits. Upon further reflection, Ingham and Hicks offered to combine these two positions in the Respondent's Recreation Department into a single job which would allow Petitioner to continue working and to receive benefits. The combined position was at a lesser pay than the present position which he held. Petitioner decided that he would prefer to be placed in the status of Disability Income Replacement in lieu of the combined jobs. In April 1993, Petitioner accepted the status of Disability Income Replacement and has not returned to work.
Recommendation Based upon the findings of fact and conclusions of law reached, it is, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations which dismisses the Petitioner's claims. DONE and ENTERED this 13th day of June, 1994, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of June, 1994. APPENDIX The following discussion is given concerning the Proposed Findings of Fact of the parties: Petitioner's Facts: Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 14 are contrary to facts found. Respondent's Facts: Paragraphs 1 through 26 are subordinate to facts found. COPIES FURNISHED: William A. Ramputi, Esquire Scott, Gleason & Pope, P.A. 409 Southeast Fourteenth Street Ocala, Florida 34471 David H. Spalter, Esquire Fisher & Phillips 2310 One Financial Plaza Fort Lauderdale, Florida 33394 Sharon Moultry, Clerk Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
Findings Of Fact Upon consideration of the oral and documentary evidence in the record, as well as the pleadings and joint prehearing stipulation, the following relevant facts are found: Cast-Crete owns and operates a concrete batch plant in Hillsborough County, Florida, and manufactures concrete products such as reinforced beams, lintels, seals and drainage structures on the property. The plant is located on the west side of State Road 579, 3/4 mile north of Interstate 4, Section 28, Township 28 South, Range 20 East. The concrete products are manufactured in various forms which are laid out over a large portion of Cast-Crete's property. Lubricating oils are utilized to facilitate the removal of the product from the confining forms. During this process some of the lubricating oil is spilled onto the ground. Also, cleaning solutions containing degreasers are utilized to wash the concrete trucks eight to ten times per day. This solution ends up on the ground. Aggregate limerock (crushed limestone) is used in the concrete formulation process and is stored in large piles on the property. In order to contain the dust, water is sprayed on the aggregate piles 24 hours a day. The wash water from the continuous process of wetting the aggregate, other waste water and some stormwater is channeled through the property and into a settling pond in the northwest corner of Cast-Crete's property. This pond discharges continuously off the property by way of a concrete flume into a county maintained ditch. Water in the ditch travels in a westerly direction approximately 200 to 300 yards before it passes under Black Dairy Road, where the watercourse deepens and widens. The ditch discharges into a marshy area which drains into Six Mile Creek and other water bodies. The pond at the northwest corner of Cast-Crete's property is equipped with a metal skimming device to remove oils and greases floating on the surface of the pond. Nevertheless, it is estimated that approximately 100 gallons of oil per year are discharged by Cast-Crete. Oil and grease in the outflow water is occasionally above 5 mg/L. Oil and grease layers have been observed on water at both Black Dairy Road and Six Mile Creek, probably resulting from road run- off. Approximately 90 percent of the water discharged from the property is a result of the wetting or washdown of the aggregate piles. The excess water which comes from the aggregate piles is laden with dissolved limestone, lime and limestone particles. This limestone dust raises the pH level of the water. Because of the continued wetting of the aggregate, water flows through the settling ponds and off of Cast-Crete's property at a rate of approximately 4.8 gallons per minute, or 7,200 gallons per day or 2.5 million gallons per year. During a rain event, the flow increases markedly. Except during times of heavy rainfall, water flowing from the respondent's property provides a thin stream of water in the drainage ditch approximately six inches wide and several inches deep. The pH of the wastewater from Cast-Crete's discharge flume is between 10 and 11 units. During high volume flows, the pH remains at or above 11 units. An increase of one unit of pH in the wastewater means that the wastewater has become 10 times more basic, since pH is measured on a logarithmic scale. The natural background of unaffected streams in the area of and in the same watershed as the Cast-Crete property is less than 8.5 units. Specific conductance or conductivity is the measure of free ions in the water. Typical conductivity readings from other water bodies in Hillsborough County range between 50 and 330 micromhos per centimeter. The specific conductance of Cast-Crete's wastewater ranges from 898 to 2000 micromhos per centimeter. This is due to the presence of calcium carbonate and calcium hydroxide in the water. Blue-green algae is the dominant plant species in the ditch between the Cast-Crete discharge flume and the first 150 meters of the ditch. A biological survey of the ditch system indicates that the diversity of species east of Black Dairy Road is low. This is attributable in part to the high pH of the wastewater. The low diversity can also be attributed to the fact that the County maintains the ditch by use of a dragline on an annual basis. Background samples from a site within one mile to the northwest of the Cast-Crete property were taken. The site (a stream passing under Williams Road) is an appropriate place to take background samples because the water there is unaffected by Cast-Crete's discharge or other man-induced conditions. The pH background sample ranged from 4.6 units to 5.1 units. The specific conductance background samples ranged from 70 to 100 micromhos per centimeter. Samples taken from a site potentially impacted by Cast-Crete's discharge showed a pH level of from 6.35 to 7.37 units and specific conductance of from 592 to 670 micromhos per centimeter. Cast-Crete discharges water from its concrete plants operation without a permit from the DER.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered requiring respondent to submit a complete application for an industrial wastewater permit within thirty (30) days, and that, if it fails to do so, it cease discharging wastewater from its property until such time as an appropriately valid permit is issued by the DER. Respectfully submitted and entered this 3rd day of May, 1985, 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 3rd day of May, 1985. COPIES FURNISHED: David K. Thulman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building Blairstone Road Tallahassee, FL 32301 W. DeHart Ayala, Jr. 501 E. Jackson Street Suite 200 Tampa, FL 33602 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, FL 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DEPARTMENT OF ENVIRONMENTAL REGULATION, STATE OF FLORIDA, Petitioner, vs. CASE NO. 84-1647 CAST-CRETE CORPORATION OF FLORIDA Respondent. /
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is liable to Petitioner Department of Environmental Protection (Department) for penalties and costs for the violations alleged in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."3 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting the water quality of the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the St. Lucie River area near Laniger's WWTP is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2, at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. The Department notified Laniger that its WWTP was listed as a threat to the water quality of the lagoon system soon after the 1991 report was issued. The Department's 1991 report concluded that the solution for package plants threats was to replace them with centralized sewage collection and treatment facilities. To date, over 90 of the package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter [sic] 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." Most of the parties' evidence and argument was directed to the following requirements of the administrative order: Beacon 21 WWTP shall connect to the centralized wastewater collection and treatment within 150 days of its availability and properly abandoned facility [sic] or provide reasonable assurance in accordance with Chapter 62-620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System and will not cause pollution in contravention of chapter 403, F.S. and Chapter 62-610.850 of the Florida Administrative Code. * * * (3) Beacon 21 WWTP shall provide this office with semi annual reports outlining progress toward compliance with the time frames specified in paragraph 1 of this section, beginning on the issuance date of permit number FLA013879-002-DW3P. The administrative order contained a "Notice of Rights" which informed Laniger of the procedures that had to be followed to challenge the administrative order. Laniger did not challenge the administrative order. As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. The force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad. Correspondence Regarding Compliance Issues On August 21, 2001, following an inspection of the Laniger WWTP, the Department sent Laniger a letter that identified some deficiencies, one of which was Laniger's failure to submit the semi-annual progress reports required by the administrative order. Reginald Burge, president of Laniger and owner of the WWTP, responded by letter to William Thiel of the Department, stating that, "All reports were sent to the West Palm Beach office. Copies are attached." Mr. Thiel testified that the progress reports were not attached to Laniger's letter and he informed Laniger that the reports were not attached. Mr. Burge testified that he subsequently hand-delivered the reports. At the hearing, it was disclosed that Laniger believed its semi-annual groundwater monitoring reports satisfied the requirement for progress reports and it was the monitoring reports that Mr. Burge was referring to in his correspondence and which he hand-delivered to the Department. Laniger's position in this regard, however, was not made clear in its correspondence to the Department and the Department apparently never understood Laniger's position until after issuance of the NOV. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, the Department received a response from Laniger's attorney, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. It was also stated in the letter from Laniger's attorney that "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] Order."4 On May 29, 2003, the Department replied, pointing out that the administrative order had found that reasonable assurance was not provided at the time of the issuance of the permit in 1999, and Laniger had made no "improvements or upgrades to the facility." The Department also reiterated that the progress reports had not been submitted. On September 29, 2003, the Department issued a formal Warning Letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The progress reports were not mentioned in the Warning Letter. The Department took no further formal action until it issued the NOV in August 2005. Count I: Failure to Timely File for Permit Renewal and Operating Without a Permit Count I of the NOV alleges that Laniger failed to submit its permit renewal application at least 180 days prior to the expiration of the 1999 permit, failed to obtain renewal of its permit, and is operating the WWTP without a valid permit. The date that was 180 days before the expiration of the 1999 permit was on or about February 27, 2004. Laniger did not submit its permit renewal application until February 15, 2005. In an "enforcement meeting" between Laniger and the Department following the issuance of the warning letter in September 2003, the Department told Laniger that it would not renew Laniger's WWTP permit. It was not established in the record whether this enforcement meeting took place before or after February 27, 2004. When Laniger filed its permit renewal application in February 2005, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger requested that the Department to act on the permit application, and the Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." Laniger filed a petition challenging the permit denial and that petition is the subject of DOAH Case 05-1599, which was consolidated for hearing with this enforcement case. Laniger's permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Count II: Failure to Submit Progress Reports Count II of the NOV alleges that Laniger failed to comply with the requirement of the administrative order to provide the Department with semi-annual reports of Laniger's progress toward connecting to a centralized sewage collection and treatment facility or providing reasonable assurances that continued operation of the WWTP would not be a threat to the water quality of the lagoon system. Laniger maintains that its groundwater monitoring reports satisfied the requirement for the semi-annual progress reports because they showed that the WWTP was meeting applicable water quality standards. The requirement for groundwater monitoring reports was set forth in a separate section of Laniger's permit from the requirement to provide the semi-annual progress reports. The monitoring reports were for the purpose of demonstrating whether the WWTP was violating drinking water quality standards in the groundwater beneath the WWTP site. They served a different purpose than the progress reports, which were to describe steps taken by Laniger to connect to a centralized sewage collection and treatment facility. Laniger's submittal of the groundwater monitoring reports did not satisfy the requirement for submitting semi-annual progress reports. There was testimony presented by the Department to suggest that it believed the semi-annual progress reports were also applicable to Laniger's demonstration of reasonable assurances that the WWTP was not a threat to the water quality of the lagoon system. However, the progress reports were for the express purpose of "outlining progress toward compliance with the time frames specified in paragraph 1." (emphasis added) The only time frame mentioned in paragraph 1 of the administrative order is connection to an available centralized wastewater collection and treatment facility "within 150 days of its availability." There is no reasonable construction of the wording of this condition that would require Laniger to submit semi-annual progress reports related to reasonable assurances that the WWTP is not a threat to the water quality of the lagoon system. Count III: Department Costs In Count III of the NOV, the Department demands $1,000.00 for its reasonable costs incurred in this case. Laniger did not dispute the Department's costs.
