Findings Of Fact Respondent is a licensed cosmetologist in the State of Florida. His license number is CL-0114757. At times relevant to the inquiry, Respondent was the owner and/or operator of a cosmetology salon named La'Moods. At times relevant, the license number for La'Moods was CE-0058354. At times relevant that salon was located in Jacksonville, Florida. Carol Engels is an inspector for the Petitioner. In performing her duties she routinely inspects cosmetology salons. Ms. Engels made a routine inspection of La'Moods on October 27, 1994. While the inspection was being conducted, the salon was open for public business. At that time, Chester Akins, a cosmetologist at the salon was combing a customer's hair. Ms. Engels inspected Mr. Akins' work area. In the Akins' work area there were loose hair cuttings. There was clutter on the top of a counter in the work area. When that clutter was moved by Ms. Engels, several cockroaches crawled out onto the work station. In addition, Ms. Engels observed a number of "gobs" of hair and greasy combs in that part of the work area that is referred to as a "clean area". Reference the cosmetologist's obligations to be performed after each customer leaves, the combs should be washed with soap and water and then disinfected for about 20 minutes and then stored in the clean area. In this instance, the clean area for Mr. Akins' work station was a drawer and that drawer had loose hair, greasy combs with hair in them, and dirty brushes in it. The drawer also had Mr. Akins' personal effects, some papers such as receipts, keys and money. The receipts, keys and paper should not have been in the clean area. Respondent was not in attendance when the inspection commenced. He came to the salon before the inspection was concluded. He did not observe the clean area at the Akins' work station on the date the inspection was made. The inspection sheet concerning the prior inspection that had been performed was not conspicuously displayed on October 27, 1994. It had been moved from a conspicuous location to the shampoo area. Respondent surmises that the inspection sheet had been placed there by a cleaning crew. This was not the first occasion in which the prior inspection sheet was not conspicuously displayed. Respondent had been cited for violations of not having prior inspection sheets conspicuously displayed because the inspection sheet had fallen off the wall or been moved by persons cleaning the salon.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered making Respondent responsible for the violations found and fining Respondent $250.00. DONE and ENTERED this 25th day of July, 1995, 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 25th day of July, 1995. APPENDIX The following discussion is given concerning the Petitioner's proposed findings of fact: Those facts are subordinate to facts found in the Recommended Order. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Cosmetology Department of Business and Professional Regulation 1940 No. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0790 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 N. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0790 James E. Manning, Qualified Representative Department of Business and Professional Regulation 1940 N. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0792 Eugene Eubanks 1443 Raven Drive Jacksonville, FL 32218
The Issue Whether, under the facts and circumstances of this case, Respondent's license to practice engineering in the State of Florida, should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, L. Thomas Hubbard d/b/a The Hubbard Association, was licensed to practice professional engineering in the State of Florida, having been issued license number PE 006634 on August 17, 1962. Certificate of authorization number EB0003297 was issued to the firm, The Hubbard Association, Inc., on September 25, 1981. In March 1986, Respondent prepared a set of plans for the proposed City of Macclenny Wastewater Treatment Works Improvement Program, Sewage Treatment Facility ("Macclenny project"), and one volume of "Contract Documents and Specifications" ("specifications"), which were submitted to the State of Florida Department of Environmental Regulation, Bureau of Wastewater Management and Grants (Bureau) on or about April 24, 1986. All wastewater treatment plans designs must go to the DER for approval prior to construction, and if a public entity wants grant funding for its wastewater treatment facility, the project must be reviewed and approved by the Bureau (now called Bureau of Local Government and Waste Water Financial Assistance) which administers State grant programs for wastewater treatment facilities. The Bureau reviews grant project plans and specifications to ensure that they: (a) comply with administrative requirements of the grants programs; (b) comply with minimum Federal and/or State technical standards for wastewater facilities; (c) are suitable for bidding; and (d) present a constructible project. The plans for the Macclenny project depict an existing treatment facility, a new clarifier to improve the removal of solids (an expansion of about 130,000 gallons per day in treatment capacity), and a new effluent pumping station to pump to an overland flow field (field) through a force main pipeline to spray risers. The risers would spray the water laterally across the field. Water would collect in a central collection ditch, and run through a final chlorine contact chamber prior to discharge in Turkey Creek. A new agricultural building for equipment storage, and a new holding pond, which is an off-line pond for storage of inadequately treated water, are also depicted. The field in the Macclenny project is roughly 24 acres and is located in a large area between the chlorine contact chamber and the holding pond. The field in this system has 5 cells. A cell is an area of land that can be independently controlled to allow loading/resting cycles in the treatment process. Each cell in a given field should be as near equal in size as possible to provide for equal treatment of the wastewater during the loading/resting cycles. Loading/resting cycles allows a cell within the field to "rest" (no effluent being pumped on to that cell) so maintenance mowing or harvesting can be accomplished and to "load" the other cells to revitalize the bacteria that renews the treatment process. "Load" means to apply the effluent or treated wastewater from the existing facility to the field. Generally, forty percent of the field would be loaded with wastewater at any one time. On December 9, 1985, the Bureau had a predesign conference with Respondent in Macclenny to discuss design items. No plans or specifications for the Macclenny project had been submitted at that time, nor were they submitted at this conference. On February 18, 1986, an in-progress design review was held at Macclenny, with the Bureau staff available to answer Respondent's questions. On March 5, 1986, another in-progress design review meeting was held in Macclenny, with the Bureau staff present, at which time the plans were "fifty percent" (50%) complete. The unsigned and unsealed plans were given to the Bureau for a preliminary review. On March 25, 1986, the Bureau issued a few preliminary comments on the 50% completed plans and specifications. The purpose of the 50% complete review is to help the design engineer complete his plans and specifications. On March 31, 1986, Respondent transmitted to the Bureau a set of plans for the proposed Macclenny project. Respondent's transmittal letter, which the Bureau received with the plans on April 11, 1986, stated that "completed plans" were being transmitted. On April 21, 1986, Respondent transmitted to the bureau an additional set of the same plans for the Macclenny project, which Respondent again referred to as "completed plans" on his transmittal letter form which were received by Bureau on April 24, 1986. This transmittal also included specifications, a design data check list, design calculations, cost estimate, and plan of operation. The plans in this submittal are referred to as "the plans." It was Respondent's understanding that signing and sealing a set of engineering drawings signified a legal obligation that if someone takes the plans and builds a project it will work. Respondent's signature and seal are on the first sheet of the set of plans which was in the April 1986 submittal but not on the specifications. The plans were prepared, signed, sealed and submitted to the Bureau for review by Respondent. Respondent did not place any conditional language or qualification on the plans or write a letter advising the Bureau that the plans were not complete. It was Respondent's understanding that the Bureau would not review a set of plans unless they were signed and sealed, notwithstanding the completeness of the plans. Respondent did not consider the plans as completed, notwithstanding that he had signed, sealed and submitted them to Petitioner as "completed". It was Respondent's understanding that the plans were being submitted for review only, not complete for construction. An engineer may get answers from the Bureau without submitting plans that are signed and sealed as completed, such as the predesign conference or 50% review that occurred in this case. The Bureau considers plans that are signed, sealed and submitted as "completed" for review to be 100% complete and ready to bid. The Bureau considered the plans and specifications which Respondent submitted on April 24, 1986 as being final, complete plans and specifications for final review by the Bureau. The Bureau reviewed the plans assuming them to be complete and followed normal procedures for reviewing a complete set of plans and specifications. On June 19, 1989, the Bureau issued 52 written comments based on its review of the plans and specifications it had received in the April 24, 1986 submittal from Respondent. The plans and specifications were submitted to the Department of General Services (DGS) by the Bureau for a review and opinion because the Bureau was concerned about the structural design. DGS responded to this request through Jim Berkstresser, P.E. on June 25, 1986. By cover letter dated July 18, 1989, Respondent filed written responses to the Bureau's 52 comments. The Bureau did not approve Respondent's plans and specifications for the Macclenny project submitted on April 24, 1986. On September 5, 1986, Respondent resubmitted plans in response to the Bureau's 52 comments. These plans had the same configuration as the April submittal regarding the overland flow treatment. On September 29, 1986, Respondent met with David Wolfe to discuss the field configuration for the proposed overland flow system and other outstanding issues related to the revised contract documents. The principal concerns were non- uniform flow and significant erosion potential. Respondent's plans did not follow accepted design criteria. At this meeting field configurations were discussed, as well as guidelines to be followed in design of the overland flow field, and a general field layout were developed. Respondent submitted another set of plans which the Bureau received on October 30, 1986, and that set was approved and stamped accepted by DER-BWMG on December 22, 1986. All sheets in the approved set are dated August 20, 1986, with the exception of the cover sheet on which Respondent failed to date his seal and signature, and sheets G-6 and G-7 which are dated October 24, 1986. Respondent signed and sealed the cover sheet and sheet G-7 of the approved set of plans, but did not seal any other sheets in the approved set of plans. A signature and seal on a set of plans indicates that the plans were prepared by, or under the direct supervision of the person signing and sealing them, and that the plans are complete and depict a project that will perform its intended function. A signature and seal on a set of plans means the engineer assures that the design is his design and that the plans and specifications are ready to be bid for construction. The design should contain criteria and information significant to ensure the project will work. Sheet flow is the primary treatment mode in an overland flow system. Sheet flow is where a thin layer of water is induced to flow in a very controlled atmosphere across a length of land that is functioning very similarly to a trickling filter. The acceptable range of slope of an overland flow system is 2% to 8% with the best results obtained in the lower range because of a longer "residence time". "Residence time" is the amount time the wastewater is on the field for treatment. The slopes must be even and uniform to maintain a constant velocity so as to minimize the potential for erosion and to maintain a constant depth of water throughout the filed so as to maximize the treatment. Cross slopes should be minimized and topographic lines should be as close to parallel as possible on the field. The plans for the Macclenny project shows: (a) slopes ranging from less than 2% up to 6%; (b) multiple compound slopes across the field and; (c) topographic lines that are not parallel. The specifications for the field do not set out the acceptable tolerances on the slopes or the acceptable level of compaction of the field for the contractor who is to construct the field and; therefore, lacks control over the final product. Contours in an overland flow field are important, and while it is desirable for them to be on 1-foot intervals, contours at intervals of 2 feet are acceptable provided the plans and specifications address what happens between the contours. Respondent's plans and specifications show contours at intervals of 2 feet but do not address what happens between the contours. The plans of the facilities that were approved prior to the submittal of any plans by Respondent called for a 2- 3 week loading/resting cycle. The standard practice is to have all cells within an overland flow field to be of equal size so that the area to be loaded at any given period of time is the same size. The cells in the overland flow field in the Macclenny project as depicted by the plans are not of equal size, and if operated on a 2-3 week loading/resting cycle would not provide a consistent amount of treatment and thereby result in varying levels of treatment of the effluent. It is standard practice to provide performance specifications for seeding the field with the primary grass cover and for overseeding when necessary to prevent wind and water erosion. There were no performance specifications in the plans and specifications on the Macclenny project submitted by the Respondent. Agricultural equipment is an integral part of the overland flow field system and has a direct bearing on whether the system will function over the long run. Specifications for agricultural equipment are necessary to determine if the system will work properly. There were no specifications for agricultural equipment submitted by the Respondent in the plans. It is standard practice to furnish spray nozzle specifications, such as nozzle size, degree of fanning, characteristics under varying pressures and how much water will be discharged by the nozzle, in a set of plans and specifications for an overland flow field. Respondent's specifications for the Macclenny project did not contain the necessary specifications for the spray nozzles. Compacting is a standard practice, and it is standard practice to show compaction requirements on plans or specifications. The usual practice is to investigate the soil and specify compaction, usually based on a foundation report by a geo-technical engineer, showing the safe beading capacity of the soil in what condition, with recommendations for compaction. The Respondent's specifications do not call for compaction of the soil under the clarifier slab. However, the Respondent's specifications do call for compaction in the holding pond and situations where an area is over-excavated and backfilled. Should the area under the clarifier slab be over- excavated and backfilled, then compaction is covered in the specifications but compaction would not be covered unless this occurs. Therefore, since the weight of the slab is carried by the soil beneath it, specifications for compaction should have been included in Respondent's specifications for any situation. Changes in temperature causes concrete to expand or contract which may result in cracking. Placement of a concrete slab may result in the slab bending which may result in cracking. Therefore, reinforcing a concrete slab is required to maintain the slab's integrity. The thickness of a concrete slab will determine the distribution of the reinforcing so that cracking is minimized. The clarifier slab in the Macclenny project is depicted as being 12 inches thick and shows number 6 bar reinforcing on 6 inch centers in the top of the slab but no reinforcing in the bottom of the slab. Failure to require reinforcing in the bottom of the slab could result in the slab cracking due to significant changes in temperature and soft spots in the soil beneath the slab. Failure to place reinforcing in the bottom as well as in the top of the slab is not in accordance with standards of the code of the American Concrete Institute (ACI), revised in 1983, and is a structural weakness. The chlorine contact chamber as detailed on sheets 5-6 and 5-7 is like a rectangular concrete box beneath the earth where the earth is within a few inches of the top of the walls. The walls are vertically reinforced with number 4 bars on 12 inch centers placed in the center of the 8 inch thick wall. When the tank is empty the reinforcing bars will be approximately 160 per cent overstressed from the active pressure of the earth. Additional reinforcing is needed in the walls to meet ACI standards. There are deficiencies in the vertical wall reinforcing of the chlorine contact chamber as detailed on sheets 5-6 and 5-7 of the Plans. On sheets 5-3, 5-4 and 5-7 of the plans, reinforcement through the construction joints is incorrectly detailed to assure that cracking of the concrete will not occur. Construction joints occur between different pours of concrete, such as where the walls meet the top of the bottom slab. The concrete bottom of the holding pond as detailed in sheet 5-8 of the Plans is large enough to require expansion joints to prevent cracking as the slab expands and contracts due to changes in the weather, yet no expansion joints are shown for the slab as detailed on sheet 5-8 of the plans. Neither the collection ditches nor the spray riser bases as detailed on the plans show any reinforcing to maintain the integrity of the concrete. While this is not a major structural weakness, it indicates a failure to comply with standard structural engineering practices. Although the plans call for relocation of an existing drainage ditch, the Respondent failed to consult DER regarding the permitting of such drainage ditch. A detention time of 30 minutes is required to properly disinfect wastewater and is-basic knowledge for all civil engineers, yet the plans called for only a fifteen minute detention time. It is standard engineering practice to provide flood level elevations on the site plans. Respondent failed to provide flood level elevations for the Macclenny facility site plans. The plans failed to: (a) provide elevations for high water alarm and pump off settings; (b) provide specifications for flume liner on sheet M-4; (c) show how to close an existing outlet on the chlorine contact chamber; (d) show where an effluent pump station was to be located; (e) show pressure relief valve locations and; (f) indicate quantities for purpose of contract bidding. The specifications list equipment and work items, such as pumping equipment, grit storage tank, case-out assembly, telescoping valve, air diffusers, portable pump, hose and couplings, that are inapplicable to the Macclenny project. There are inconsistencies in the plans and specifications, such as: (a) the plans showing one clarifier while the specifications call for two clarifiers, (b) the plans showing a 150 pound chlorine cylinder as opposed to a 1-ton chlorine cylinder in the specifications and; (c) the plans showing the clarifier with a 38-foot diameter while the specifications calls for a clarifier with a 40-foot diameter. Respondent was negligent in submitting incomplete plans to the Bureau as "completed plans" and in failing to utilize due care and failing to have due regard for acceptable standards of engineering principles, with regard to the content of those plans which he submitted as "completed plans".
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, L. Thomas Hubbard guilty of violating Section 471.033(1)(g), Florida Statutes, and for such violation impose an administrative fine of $1,000.00 and suspend from the practice of engineering for a period of thirty (30) days, stay the suspension and place the Respondent on probation for a period of one year under terms and conditions the Board deems appropriate. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0096 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1. Rejected as not being necessary to the conclusions reached in this Recommended Order. 3.-12. Adopted in Findings of Fact 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, respectively, but modified. 13. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 14.-19. Adopted in Findings of Fact 12, 13, 14, 15, 16, and 17, respectively, but modified. Rejected as being immaterial or irrelevant or subordinate or unnecessary. Adopted in Findings of Fact 17 and 18 but modified. 22.-33. Adopted in Findings of Fact 19, 20, 21, 22, 23, 24, 24, 25, 26, 27 and 27, respectively, but modified. 34. Adopted in Findings of Fact 17 and 18, but modified. 35-37. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 38. Adopted in Findings of Fact 28 and 29, but modified. 39.-40. Rejected as being immaterial or irrelevant or unnecessary or subordinate, but see Findings of Fact 37 and 38. 41.-5O. Adopted in Findings of Fact 28, 32, 29 (28-31), 29, 29, 32, 30, 32 and 32, respectively, but modified. 51. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 52.-53. Adopted in Findings of Fact (28-33) and 32, respectively, but modified. 54.-55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. Adapted in Finding of Fact 55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 58.-62. Adopted generally in Findings of Fact 28-33. 63.-66. Adopted generally in Findings of Fact 34-36. 67.-72. Adopted generally in Finding of Fact 37. 73.-74. Adopted generally in Finding of Fact 38. 75.-76. Adopted generally in Finding of Fact 39. 77.-79. Adopted generally or covered in Findings of Fact 13-15 and 28-39. 80.-82 Adopted generally or covered in Findings of Fact 40- 41. 83.-90. Adopted generally or covered in Findings of Fact 42 and 43. 91.-96. Adopted generally or covered in Findings of Fact 44 and 45. 97.-104. Adopted generally or covered in Finding of Fact 46. 105.-107. Adopted generally or covered in Finding of Fact 47. 108.-109. Adopted in Finding of Fact 48. 110.-115. Adopted generally or covered in Finding of Fact 55. 116.-117. Adopted in Finding of Fact 49 and 50. 18. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 119. Adopted in Finding of Fact 51. 120.-124. Adopted in Finding of Fact 52. 125. Rejected as immaterial or irrelevant or unnecessary or subordinate. 126.-127. Adopted in Finding of Fact 52. Adopted in Finding of Fact 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 53. Adopted in Finding of Fact 55. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 13-15. Adopted in Finding of Fact 19 except last sentence that is rejected as being immaterial or irrelevant. Rejected as being a restatement of Administrative Complaint and not a Finding of Fact but see Findings of Fact 15 and 19. Rejected as being a restatement of John Sowerby's testimony and not a Finding of Fact, but see Findings of Fact 15, 17 and 18. Adopted in Finding of Fact 15. 6. Restatement of David Wolfe's testimony COPIES FURNISHED: Rex Smith Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Wings S. Benton, Esquire 1020 D. Lafayette Street, Suite 205 Post Office Box 5676 Tallahassee, Florida 32314-5676 L. Thomas Hubbard, pro se THA Building 3110 Spring Glen Road Jacksonville, Florida 32207
The Issue The issue is whether Respondents should have an administrative penalty imposed, take corrective action, and pay investigative costs for allegedly maintaining a solid waste management facility without a permit and disposing of solid waste in an area subject to periodic or frequent flooding.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background DDD is a corporation registered to do business in the State of Florida. Its president and sole director is William H. Stanton, Jr. The corporation is engaged in the business of "mobil recycling activities" (reduction recycling services for customers). Mr. Stanton owns a two-acre tract of property located in Section 26, Township 28S, Range 24B, on the northwest corner of Mustang Road and Longhorn Drive, Lakeland, Florida. The property is zoned for heavy industrial uses and was formerly used in some form of phosphate mining operations. The Department is the agency charged with the duty of administering and enforcing the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder. Based upon a complaint made by a Polk County Health Department employee, on October 8, 2001, a Department enforcement coordinator, Steven G. Morgan, inspected Mr. Stanton's property and observed that Respondents had filled and compacted an approximate 150 foot by 300 foot area of the site with 3 to 5 feet of "wallboard type material," which consisted of "both ground up and large pieces of wallboard." In the middle of the filled area was an additional pile of the same material around 20 to 25 feet high. Petitioner's Exhibits A, D, and E are photographs which provide an accurate representation of the site on the date of the inspection. Based on a visual inspection, but without having the benefit of his own laboratory analysis,2 Mr. Morgan concluded that the material was a solid waste made up of discarded industrial products. Under Department rules, the deposit of solid waste on such a site requires a waste facility management permit from the Department. A check of Department records indicated that Respondents do not hold a permit to operate a solid waste management facility. (DDD does hold a valid air pollution permit for grinding concrete.) During his inspection, Mr. Morgan also observed that the land adjacent to the filled area was wet, had a lower elevation than the compacted area, and contained small pockets of standing water. This was confirmed by photographs received in evidence as Petitioner's Exhibits D and E. A DDD employee who was present on the site during the inspection indicated that approximately 900 truck loads of the material had been transported to the site from Plant City after Mr. Stanton had "lost" a lease on the property on which the material had previously been placed. This was confirmed by Mr. Stanton who arrived at the site shortly after the inspection began, and who indicated that he intended to use the compacted wallboard as a sub-base (or foundation) for a wallboard recycling facility. A second site inspection by Mr. Morgan conducted on February 5, 2002, confirmed that the conditions (regarding the piles of fill material but not the standing water) at the site were unchanged from those found on October 8, 2001. On that visit, Mr. Morgan observed the site from his automobile but did not walk the property. Two other site visits were made, one on June 19, 2002, by other Department personnel. Except for a photograph (Petitioner's Exhibit C) dated June 19, 2002, which indicates the piles of material were still intact and had not been removed, the results of those inspections are not of record. Shortly after the initial inspection, the Department's Tampa District Office issued a warning letter to Mr. Stanton describing Mr. Morgan's observations and outlining the potential violations. The letter also invited Mr. Stanton to resolve the matter informally and to present a corrective action plan to mitigate the site. When the matter could not be resolved informally, the Department issued its Notice on October 10, 2002, alleging that Respondents had operated a solid waste facility without a permit and had deposited solid waste in an area prone to flooding. Even though the matter was not informally resolved, Mr. Stanton has cooperated with the Department in good faith throughout the regulatory process. The Material on the Site Invoices received in evidence reflect that the source of the deposited material was James Hardie Building Products in Plant City, Florida, and that the material was described on the invoices as "Dry Waste Material," Wet Waste Material," and "Foreign Material." James Hardie Building Products manufactures HardieBoard, which is a one-half to one-inch thick concrete formulated product used in the construction of homes and other buildings, and HardiePipe, which is used in road and bridge construction, culverts, storm sewers, and concrete pipes. The material being deposited was material used in the manufacture of HardieBoard. Mr. Stanton's long-range plans are to grind up, or recycle, the material (after all necessary permits, if any, are obtained) and then sell it to other persons, including cement manufacturing plants in the area, who will then use it for a variety of purposes, including subbase and base material, cement and concrete re-additive, and cement production. HardieBoard (as well as HardiePipe) is a variable mixture of Portland cement, water, fine silica sand, less than 10 percent cellulose (a non-toxic organic material commonly added to such products as ice cream, shampoo, baby diapers, and rayon clothing), and less than 10 percent of inert materials. The cellulose fibers are added to the concrete to avoid cracking and shrinkage and to reduce the weight of the product. Unlike concrete used for driveways and the like, HardiBoard does not have any large aggregate. Disposal of Solid Waste and Clean Debris Florida Administrative Code Rule 62-701.300(1)(a) prohibits the storing, processing, or disposing of solid waste except at a permitted solid waste management facility. In addition, no solid waste may be stored or disposed of "[i]n an area subject to frequent and periodic flooding unless flood protection measures are in place[,]" or "[i]n any natural or artificial body of water including ground water." Fla. Admin. Code R. 62-701.300(2)(d) and (e). These requirements form the basis for the charges in the Notice. Florida Administrative Code Rule 62-701.200(113) defines solid waste in relevant part as "discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations." Section 403.707(2)(f), Florida Statutes (2003), provides, however, that a permit is not required for "[t]he use of clean debris as fill material in any area." See also Fla. Admin. Code R. 62-701.220(2)(f). "Clean debris" is defined in Florida Administrative Code Rule 62-701.200(15) as: any solid waste which is virtually inert, which is not a pollution threat to ground water or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. The term includes brick, glass, ceramics, and uncontaminated concrete including embedded pipe or steel. The term "virtually inert" is not defined by statute or rule. However, the parties agree that in order for a material to be "virtually inert," it must have no potential for leaking contaminants into the groundwater. In addition, if a deposited material releases contaminants into the groundwater thereby posing a threat to human health, it is considered a "threat to [groundwater]" within the meaning of the rule. The rule also provides that the material must not be a fire hazard. Finally, if a material decomposes over time after being used as fill, and releases contaminants into the groundwater, it is not "likely to retain its physical and chemical structure under expected conditions of disposal or use." Therefore, if a material has no potential for leaking contaminants into the groundwater, is not a threat to groundwater, is not a fire hazard, and is not likely to decompose over time, it constitutes clean debris and is exempt from the waste management facility permitting requirements. As noted above, Florida Administrative Code Rule 62- 701.200(15) identifies four materials that are considered to be clean debris: brick, glass, ceramics, and uncontaminated concrete. If a waste product is classified as uncontaminated concrete, it constitutes clean debris and may be used as fill without a permit from the Department. Further, clean debris may be deposited in an area subject to frequent or periodic flooding so long as flood protection measures are taken, or in a natural or artificial body of water so long as other appropriate permits (such as an Environmental Resource Permit) are obtained. Here, the central issue is whether the material deposited on Mr. Stanton's property is solid waste or clean debris. This issue turns on whether the material is virtually inert, is not a pollution threat to groundwater or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. Assuming these criteria are satisfied, the material is exempt from Department permitting requirements for solid wastes. On this issue, the Department contends that the material is not virtually inert and is unlikely to retain its physical and chemical structure. Conversely, Respondents assert that the material is clean debris and falls within the category of uncontaminated concrete. Is the Deposited Material Clean Debris? In determining whether a material is virtually inert, or is a pollution threat to ground or surface waters, two extraction procedures have been sanctioned by the United States Environmental Protection Agency to assist in the measurement of the amount of contaminants that will leak from a material: the Toxicity Characteristic Leaching Procedure (TCLP) and the Synthetic Precipitation Leaching Procedure (SPLP). Under both procedures, the material being tested is ground up into small sand-size particles, mixed with an extraction fluid, and tumbled for 18 hours in a rotary agitator while the liquid solution extracts various metals that are found in the solids. The extracted liquid solution is then filtered and analyzed to determine the concentration of metals actually leached from the solids. Under state water drinking standards found in Table 1 of Florida Administrative Code Chapter 62-550, the maximum contaminant levels for chromium and barium (stated in milligrams per liter (mg/L)) are 0.1 mg/L and 2 mg/L, respectively. In reaching its conclusion that the fill material is a solid waste, the Department relied principally on certain tests of the material run by various laboratories between 1998 and 2000, which showed that the amount of chromium and barium leaking out of the product exceeded the State drinking water standards. See Petitioner's Exhibits K, L, M, and O. However, in every one of those tests, the laboratories used the TCLP, rather than the SPLC, which produced a worst case scenario. For the reasons stated below, the TCLP is not the appropriate procedure to be used for this purpose. The TCLP is the more aggressive of the two procedures, uses a much harsher solution than the SPLC, and generally leaches higher concentrations of metals. However, its principal purpose is to determine whether a material should be classified as a hazardous waste based on its leaching properties or characteristics. Using it to predict whether a material will leach into ground water is inappropriate because it will "leach things out in the laboratory that will never leach in the field." This is because it does not mimic conditions in the field and is "just not supposed to be used for this purpose." Therefore, TCLP leachate values should not be applied to drinking water standards. Conversely, the SPLC uses a less harsh solution during the preparation process, evaluates the potential for leaching metals into ground and surface waters, and is designed to provide a more realistic assessment of metal mobility under actual field conditions. In other words, the SPLC simulates what would happen if the sample were exposed to groundwater and rain to determine if under those conditions metals might leach into the water system below. Therefore, the SPLC is the more appropriate procedure to use here to determine whether the HardieBoard material will leach certain metals into the groundwater at levels that exceed State drinking water standards. Even various Department guidance documents provide that the SPLC (rather than the TCLP) should be used to determine if a material will leach metals into the ground water. See Respondents' Exhibits M, N, and O. Respondents' witness Foster collected three samples of HardieBoard deposited by Respondents at another site and submitted them to PPB Environmental Laboratories, Inc., in Gainesville, Florida, for a clinical analysis using the SPLC test. Those results, which have been accepted as being reliable,3 indicate that none of the leachate concentrations for arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver exceed (or even approach) the drinking water standards. Therefore, the material is virtually inert, and the groundwater quality will not be adversely impacted by use of this material as fill. The parties agree that the material is not a fire hazard. Prior to depositing the material, Mr. Stanton used a commercial waste reduction machine (a Smorcazy Bandit Beast 3680 Horizontal Trough Grinder) to grind or pulverize some of the material into fine particles. As noted earlier, a small amount of cellulose fibers are added to the product during the manufacturing process. The Department contends that after the grinding process occurs, these fibers will separate from the remaining fine particles and dissolve into the ground water. Because of this separation, the Department asserts that the material does not retain its physical or chemical structure after being deposited onto the property. Although cellulose fibers are added to the product during its preparation to strengthen the material (and have been added by cement manufacturers since the 1920s), they are distributed throughout the matrix in the material. This means that the fibers become "part and parcel of the mixture" and will not deteriorate, fall out, or leach out of the material even after routine grinding processes, such as that done by Respondents. As such, the cellulose is not biodegradable, and there is no concern that the cellulose will dissolve into the groundwater. Indeed, HardiePipe, which is used in the construction of culverts, storm sewers, and drainage pipes and has essentially the same constituents as HardieBoard, was approved by the Florida Department of Transportation in 2001 for use on State road and bridge projects. Therefore, it is found that the fill material will retain its physical and chemical structure after being deposited onto the ground. Expert testimony by Dr. McClellan established that the material meets the general definition of concrete, and because it is uncontaminated, it should properly be classified as uncontaminated concrete. As such, the material is clean debris and is not subject to the Department's solid waste management permitting requirements. Finally, the Department points out that the compressive strength (measured in pounds per square inch (PSI)) is much greater for concrete used in driveways than for HardiBoard (2500 PSI versus 20 to 30 PSI), and therefore Hardiboard is not a true concrete product. While the PSI values are indeed substantially different, the load bearing ratio or compressive strength of the material does not determine whether a material falls within the generic category of concrete. Water Issues As noted above, if a material is classified as clean debris, it may be deposited into an area prone to flooding or in a natural or artificial body of water, including groundwater (subject, of course, to other unrelated requirements or safeguards). There is no evidence that the filling occurred in a "natural or artificial water body," or directly into the groundwater. In addition, the evidence demonstrates that in October 2001, the ground next to the filled area had small pockets of standing water measuring no more than a few inches deep. However, when the inspection was made, and the photographs taken, Polk County was experiencing rather heavy rainfall, presumably due to the El Nino phenomenon. Whether these conditions (pockets of standing water) exist on the property only during the rainy season is not of record. Further, prior to the filling, Mr. Stanton contacted both the Southwest Florida Water Management District and the United States Geodetic Survey and he asserted, without contradiction, that neither agency indicated that his property was prone to flooding. In any event, even assuming that the area is subject to "frequent and periodic flooding," the permit requirements or other necessary safeguards, if any, associated with filling clean debris in such an area are not the subject of this proceeding. Investigative Costs A Department representative spent 66 hours investigating this matter for the Department. At a then-hourly rate of $18.54, this totals $1,223.64 in investigative costs. The reasonableness of this amount was not disputed by Respondents.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should revoke the Petitioner's exemption from the requirement to obtain a General Permit for Disposal of Tomato Wash Water under Florida Administrative Code Rule 62-660.805.
Findings Of Fact The Petitioner, Harllee Packing, Inc., formerly known as Harllee-Gargiulo, Inc., is a grower and shipper of Florida vegetables that generates wastewater from its tomato-washing operation. On January 8, 1992, the Department of Environmental Regulation (DER), the predecessor to the Respondent, the Department of Environmental Protection (DEP), adopted Florida Administrative Code Rule 17-660.805, which not only provided for a General Permit for Disposal of Tomato Wash Water but also provided for an exemption from the requirement to obtain a permit under certain circumstances and conditions. (The rule was renumbered in 1996 and is now Rule 62-660.805.) In 1992, the Petitioner requested an exemption for its tomato-washing operation and entered into discussions with DER regarding the tomato-washing operation. On October 6, 1992, the Petitioner submitted information in support of its request for an exemption. DER issued the Petitioner a Notice of Permit Exemption on November 13, 1992. The Notice of Permit Exemption stated that the information submitted on October 6, 1992, provided "reasonable assurance that proper operation will occur to prevent violations of the Department's rules and regulations." There was no other evidence as to why the exemption was issued. At the time of and since issuance of the Notice of Permit Exemption, the Petitioner's tomato-washing operation has used approximately 16,500 gallons of wash-water a day. After use in the tomato-washing operation, the tomato wash-water is loaded from a storage tank into dedicated tankers for transportation and uniform distribution on uncultivated agricultural fields in accordance with the Notice of Permit Exemption. The Notice of Permit Exemption prohibits distribution during or within 24 hours after a rainfall event greater than a 10-year, 1-hour storm and requires a minimum 5-day resting period between distributions to any one distribution site. Runoff outside the prescribed distribution sites also is prohibited. Although no witness testified, it can be inferred from these provisions themselves that their purpose was to control entry of the tomato wash-water into the groundwater and to prevent surface water runoff. The Notice of Permit Exemption warned that it could be revoked if the tomato-washing operation was substantially modified, if the basis for the exemption was determined to be materially incorrect, or if the Petitioner failed to comply with the specific conditions in the Notice of Permit Exemption. On January 28, 1998, DEP issued a Notice of Exemption Revocation. There was no evidence that the tomato-washing operation has been modified or that the Petitioner failed to comply with the specific conditions in the Notice of Permit Exemption. The exemption was revoked because "tomato washing operations discharging between 5000 and 50,000 gallons per day are required to obtain industrial wastewater general permits from the Department."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order revoking the Petitioner's exemption. DONE AND ENTERED this 16th day of October, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Terry Cole, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32301 J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1998. Ricardo Muratti, Assistant General Counsel Jennifer Fitzwater, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 Kathy Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue to be determined in this case is whether the Notice of Intent to Issue Order Requiring Access to Property (“Access Order”) issued by the Department of Environmental Protection (“Department”) and directed to Glenda Mahaney, as the property owner, is a valid exercise of the Department’s authority.
Findings Of Fact Petitioner Glenda Mahaney is a natural person and the owner of the property identified in the Access Order. The Department is the state agency which has been granted powers and assigned duties under chapters 376 and 403, Florida Statutes, for the protection and restoration of air and water quality and to adopt rules and issue orders in furtherance of these powers and duties. Background The groundwater beneath a parcel of land adjacent to Petitioner’s property was contaminated with petroleum when the land was used in the past for auto salvage operations. Initial groundwater sampling near the border of Petitioner’s property showed groundwater contamination by gasoline constituents which exceeded Groundwater Cleanup Target Levels (“GCTLs”). In other words, the contamination was at levels that required cleanup. However, later sampling showed the concentration of contaminants had decreased below GCTLs, probably as a result of natural attenuation. The existing data suggests that any groundwater contamination beneath Petitioner’s property is probably now at a level that would not require cleanup. However, the Department issued the Access Order because the Department is not certain about the contamination beneath Petitioner’s property and because Petitioner has continually requested further investigation. Petitioner believes contamination from the auto salvage site has caused illness in a tenant and even contributed to other persons’ deaths. However, no expert testimony was received on this subject and no finding is made about whether contamination exists on Petitioner’s property which has caused illness or death. The Department’s Site Investigation Section wants access to Petitioner’s property in order to determine whether contamination has migrated beneath Petitioner’s property and, if it has, the extent and concentration of the contaminants. The Department wants to: (a) install up to five temporary groundwater monitoring wells, (b) collect groundwater samples from the wells, (c) collect a groundwater sample from Petitioner’s potable water well, and (d) remove the monitoring wells after the sampling. The Access Order includes terms related to advance notice, scheduling, and related matters. Liability Although Petitioner believes petroleum contamination is present and wants it cleaned up, she objects to the provision of the Access Order related to liability. Paragraph 9(e) of the Access Order provides: Ms. Mahaney shall not be liable for any injury, damage or loss on the property suffered by the Department, its agents, or employees which is not caused by the [sic] negligence or intentional acts. Petitioner insists that she should not be liable under any circumstances for injuries or damages suffered by Department’s agents or employees who come on her property for these purposes. She demands that the Department come onto her property “at their own risk.” At the final hearing, the Department stated that it did not intend to impose on Petitioner a level of liability different than the liability that would already be applicable under Florida law. The Department offered to amend Paragraph 9(e) of the Access Order to indicate that Petitioner’s “liability, if any, shall be determined in accordance with Florida law.” Scope of the Investigation Petitioner objects to the proposed groundwater sampling because she does not believe it is extensive enough. Petitioner also believes the Department should test for soil contamination. The Department’s expert, David Phillips, testified that the proposed monitoring well locations were selected based on the direction of groundwater flow in the area and the wells are along the likely path of migration of any contaminated groundwater from the former auto salvage site. Another Department witness, Tracy Jewsbury, testified that no soil contamination was found on the auto salvage site, so the Department has no reason to expect there would be soil contamination on Petitioner’s property that came from the auto salvage operation. The Department will use the data collected from the wells to determine if contamination is present and whether future contamination assessment and/or remediation activities are necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection withdraw the Access Order or, alternatively, that Paragraph 9(e) of the Access Order be amended to provide that Ms. Mahaney’s potential liability, if any, shall be determined in accordance with Florida law. DONE AND ENTERED this 15th day of November, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2017. William W. Gwaltney, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Glenda Q. Mahaney Post Office Box 123 Mount Dora, Florida 32756 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed
The Issue Whether Petitioner's drycleaning facility (Nu-Look One Hour Dry Cleaning) is eligible to participate in the Drycleaning Solvent Cleanup Program.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner and His Facility Petitioner David Kim is a fifty-one-year-old college graduate. He moved from his native Korea to the United States in October of 1971 and has lived in this country ever since. For approximately the past ten years, Mr. Kim has owned and operated a drycleaning business, Nu-Look One Hour Dry Cleaning, which operates out of a facility located at 2968 Jog Road in Greenacres, Florida (Petitioner's Facility). Petitioner is the business' only full-time employee. (There is one other employee. That employee works on a part-time basis.) Petitioner is at the Facility approximately 70 to 72 hours per week. (The Facility is open for business from 7:00 a.m. to 7:00 p.m., Monday through Saturday.) Petitioner's Knowledge, Prior to January 1, 1997, of Secondary Containment Requirements In or about March of 1995, the Department of Environmental Protection (Department) mailed a document describing interim registration requirements for drycleaning facilities to every known drycleaning facility in Florida, including Petitioner's Facility. In addition to providing information about registration requirements, the document gave the following "brief description of the Drycleaning Solvent Cleanup Program": Drycleaning Contamination Cleanup The 1994 Florida Legislature established, under Chapter 376 of the Florida Statutes (F.S.), a state funded program to cleanup properties that are contaminated with drycleaning solvents caused by drycleaning and wholesale supply facilities. The statute also provides limited immunity from enforcement of state and local environmental regulations that require cleanup of certain discharges of drycleaning solvents. The revenue source for the program is provided by a gross sales receipt law (which became effective October 1, 1994), registration fees, and a per gallon tax on perchloroethylene imported or produced in the state of Florida. Highlights of the program are: . . . LIABILITY For eligible facilities, costs incurred by the state for site rehabilitation will be absorbed at the expense of the fund. Eligibility in this program may relieve the owner and/or operator from state and local action to compel site restoration. Eligibility in this program will not relieve the owner and/or operator from federal government action or from current waste management requirement. Petitioner registered his Facility with the Department after learning that he was required to do so. Department staff compiled a mailing list containing the addresses of all drycleaning facilities (including Petitioner's Facility) registered with the Department (Mailing List). In March of 1996, the Department mailed to each of the registered facilities listed on the Mailing List (including Petitioner's Facility) copies of a March 1996 Drycleaning Solvent Cleanup Program Update (March 1996 Update), together with a brochure providing general Drycleaning Solvent Cleanup Program (Program) information. It is presumed that Petitioner received these materials at his Facility absent any credible evidence to the contrary.2 The March 1996 Update provided, in pertinent part, as follows: The Drycleaning Solvent Cleanup Rule (Rule 62-781, Florida Administrative Code) has been adopted. The rule will become effective on March 13, 1996, and at this time, the Department will begin accepting applications to the Program. A copy of the rule and the forms [are] enclosed. To apply to the Drycleaning Solvent Cleanup Program, the enclosed application form and site screening form must be completed in accordance with the instructions and guidance manual that are attached. The application package must be accompanied by the required attachments and must be signed. . . . The registration fee of $100 was due on December 31, 1995. In February 1996, the Department mailed a second notice to all registered facilities that did not submit their payment. Non-payment of the annual registration fee may affect program eligibility. Also enclosed are a general program information document and a document which offers guidelines for compliance with the secondary containment requirement. Be sure to check out the FDEP's toll-free, Fax-On- Demand System for the Drycleaning Solvent Cleanup Program. This system is updated as new information is available. Currently, the system will allow you to receive this March 1996 program update, registration forms, guidance for secondary containment and copies of the rule and forms by facsimile. The FDEP Fax-On-Demand System is available 7 days a week, 24 hours a day, by calling (800) 789- 4502. The "general information" contained in the brochure that accompanied the March 1996 Update included the following: Program Application The Drycleaning Solvent Cleanup Program Rule (62-781, Florida Administrative Code) specifies requirements for application to the program and provides forms for application to the program and documentation of contamination. The rule becomes effective on March 14, 1996. The Department will begin accepting applications on this date. Eligibility and Priority Ranking Section 376.3078(3), Florida Statutes identifies certain criteria that must be met in order for a site to be eligible for the program. Once the Department has reviewed the program application and determined that a site has met these requirements, then the Department will score the site in accordance with the scoring system in the statute. The score that a site receives will determine the order in which the Department will begin site rehabilitation activities. For eligible sites, costs incurred by the state for site rehabilitation will be absorbed at the expense of the fund minus a deductible amount as specified in the law. Eligibility in this program will not relieve the owner, operator or real property owner from federal actions or from current waste management requirements. General Program Requirements An important goal of the Drycleaning Solvent Cleanup Program is to protect the environment from future contamination by drycleaning solvents. In order to achieve this goal, the 1995 Florida Legislature passed requirements for prevention of contamination that apply to all operating drycleaning facilities. In addition to these requirements, the owner, operator and real property owners of drycleaning facilities and wholesale supply facilities have certain responsibilities according to the law. Failure to comply with these requirements may affect a site's eligibility. Some of these responsibilities and requirements are summarized below. Secondary containment The deadlines to install secondary containment and the type of containment both depend on when the facility commenced operations: Facilities that begin operation on or after January 1, 1996, must be equipped with secondary containment when the business begins operation. Secondary containment for these facilities must consist of rigid and impermeable containment vessels installed beneath each machine or equipment in which drycleaning solvents are used. Facilities that began operations prior to January 1, 1996, must be equipped with secondary containment by January 1, 1997. Secondary containment for these facilities must consist of rigid and impermeable containment vessels, or a dike around each machine or item of equipment in which drycleaning solvents are used. All facilities, regardless of when operation began, must install secondary containment around any solvent or waste solvent storage areas by January 1, 1997. The secondary containment for storage areas must be either a rigid and impermeable vessel, or a surrounding dike. The rigid and impermeable vessels shall be constructed of metal or other material that cannot be permeated by drycleaning solvents, according to manufacturer product use and limitation recommendations. All diked containment areas must be sealed or otherwise made impervious to drycleaning solvents, including floor surfaces, floor drains, floor joints and inner dike walls. Concrete or asphalt floor surfaces are not impervious to drycleaning solvents. The Department recommends the installation of containment vessels rather than the installation of dikes, because the containment vessels offer greater security from releases. A separate information sheet with additional information about secondary containment was mailed to all registered drycleaning facilities in March 1996. For More information This General Program Information document along with other program information is available through the FDEP Fax-On-Demand System. Sometime in or shortly before May of 1996, Petitioner attended a Department presentation concerning the Program that was given in Palm Beach County [Department Presentation). Among those who spoke to the attendees at the Department Presentation was Leslie Smith, the Department's Southeast District Representative for the Program. Another speaker was a representative of HSA Environmental, a consulting firm hired by the Department to assist it in implementing the Program. At the Presentation (which was similar in format to Department presentations given in other parts of the state), the attendees were given an explanation of secondary containment requirements, including installation deadlines. In July of 1996, the Department mailed to each registered facility (including Petitioner's Facility) copies of a July 1996 Drycleaning Solvent Program Update (July 1996 Update), together with a detailed memorandum entitled, "What you need to know about . . . Secondary Containment Requirements for Drycleaning Facilities." It is presumed that Petitioner received these materials at his Facility absent any credible evidence to the contrary. The July 1996 Update provided, in pertinent part, as follows: The Drycleaning Solvent Cleanup Program Rule (Rule 62-781, Florida Administrative Code) became effective on March 13, 1996. The Department is now accepting applications to the Program. Application to the program is optional. A copy of the rule and forms was mailed to all registered drycleaning facilities and wholesale supply facilities in March. If you did not receive a copy or need additional copies, please call the Department's Fax-On-Demand system at (800) 789-4502, or contact the Department at (904) 488-0190, or the District Office. Also the forms can be downloaded from the Internet from the location http://www.dep.state.fl.us/waste/programs/ dryclean/index.htm To apply to the Drycleaning Solvent Cleanup Program, the application form and site screening form must be completed in accordance with the instructions and guidance manual. The application package must be accompanied by the required attachments and must be signed. Forms that have been altered in any way or application packages that are incomplete will be returned to the applicant. Application packages that are returned will delay the processing of the application. Therefore, it is important that the application packages be complete and that the forms are not altered. Information on environmental consultants that are available to complete the site screening portion of the application may be obtained from local drycleaning associations. Because of the expected volume of applications that the Department will initially receive, it may take the Department several weeks to determine if a site is eligible for the program. The Department will mail a letter of determination of program eligibility to the applicant once the review process is complete. . . . Be sure to check out the FDEP's toll-free, Fax-On-Demand System for the Drycleaning Solvent Cleanup Program. This system is updated as new information is available. Currently, the system will allow you to receive this June [sic] 1996 program update, registration forms, guidance for secondary containment and copies of the rule and forms by facsimile. The FDEP Fax-On-Demand System is available 7 days a week, 24 hours a day, by calling (800) 789-4502. The memorandum accompanying the July 1996 Update contained the following information regarding secondary containment requirements: Section 376.3078(7)(a) and (b), Florida Statutes, requires owners or operators of drycleaning facilities to provide secondary containment of drycleaning solvents. Below are answers to several questions about secondary containment requirements. What is secondary containment? The purpose of secondary containment is to prevent releases of drycleaning solvents to the environment and reduce contamination of soils and groundwater. The secondary containment requirements provide for temporary containment of accidental spills or leaks until appropriate response actions are taken by the owner/operator to abate the source of the spill and remove the product from all areas on which the product has accumulated. When is secondary containment required to be in place and what type of containment is required? The deadlines to install containment and the type of containment both depend on when the facility commenced operations: Facilities that begin operation on or after January 1, 1996, must be equipped with secondary containment when the business begins operation. Secondary containment for these facilities must consist of rigid and impermeable containment vessels installed beneath each machine or item of equipment wh[ere] drycleaning solvents are used. Facilities that began operation prior to January 1, 1996, must be equipped with secondary containment by January 1, 1997. Secondary containment for these facilities must consist of rigid and impermeable containment vessels, or a dike around each machine or item of equipment wh[ere] drycleaning solvents are used. All facilities, regardless of when operations began, must install secondary containment around any solvent or waste solvent storage area by January 1, 1997. The secondary containment for storage areas must be either a rigid and impermeable vessel, or a surrounding dike. The rigid and impermeable vessels shall be constructed of metal or other material that cannot be permeated by drycleaning solvents, according to manufacturer product use and limitation recommendations. All diked contained areas must be sealed or otherwise made impervious to drycleaning solvents, including floor surfaces, floor drains, floor joints and inner dike walls. Concrete or asphalt floor surfaces are not impervious to drycleaning solvents. For information about acceptable sealants for diked surfaces, please see question #4 below. The department recommends the installation of containment vessels rather than the installation of dikes, because containment vessels offer greater security from releases. How much secondary containment capacity do I need? All machines and equipment that have a tank capacity of greater than one quart and all areas in which solvents or wastes that contain solvents are stored, must have secondary containment. Containment structures must be able to contain at least 110% of the capacity of each such machine or item of equipment and each storage area. The capacity of a machine or equipment is the capacity of the largest single tank in the machine or equipment. The capacity of a solvent or waste storage areas is the volume of the largest container. Floor surfaces should be sealed underneath and at least two feet around all machines or equipment that have a tank capacity of one quart or less and are not within a secondary containment structure. Containment vessels and equipment must be mounted in such a way as not to compromise the integrity of the containment vessel. Outdoor storage areas must be roofed or otherwise protected from the accumulation of rainfall. What types of floor sealants are acceptable? In order to maintain a secondary containment dike that is impervious to drycleaning solvents, all floor surfaces, floor drains and floor joints within the diked area must be sealed with a solvent-resistant sealer and/or caulking compound (sealant). The Department does not recommend any specific floor sealers or sealants. However, the sealer and sealant must be compatible with and resistant to all solvents used at the facility for a contact period of at least 72 hours, according to manufacturer product use and limitation recommendations. The sealant must be applied and maintained in accordance with manufacturer specifications. Sealant specifications and a record of application dates must be maintained at the facility. What is required if a spill occurs outside of a containment area Upon discovery of any spill outside of a containment area, the owner or operator of any drycleaning facility or wholesale supply facility must immediately: 1) Initiate and complete actions to abate the source of the spill, remove the discharged solvents from all indoor and outdoor surfaces, remove all discharged solvents and dissolved solvents from any septic tank or catch basin in which the solvent has accumulated, remove affected soils; and, 2) Report the spill or discharge to the State Warning Point, by calling (904) 413-9911. The Department issues this guidance in order to assist owners and operators of drycleaning facilities in complying with Florida law. These guidelines and any future revisions can be obtained through the Department's Fax-on- Demand system by calling (800) 789-4505 (24hours/day). If you have any questions regarding these guidelines you may call (904) 488-0190, or write to: Drycleaning Solvent Cleanup Program Florida Department of Environmental Protection Mail Station 4520 2600 Blair Stone Road Tallahassee, Florida 32399-2400 In December of 1996, the Department mailed to each registered facility (including Petitioner's facility) copies of a December 1996 Drycleaning Solvent Program Update (December 1996 Update), which read as follows: The Drycleaning Solvent Cleanup Program Rule (Rule 62-781, Florida Administrative Code) became effective March 13, 1996. The Department is continuing to accept applications to the Program. Application to the program is optional. Copies of the rule and forms were mailed to all registered drycleaning facilities and wholesale supply facilities in March. If you did not receive a copy, or need additional copies, please call the Department's Fax-On-Demand system at (800) 789-4502, or contact the Department at (904) 488-0190, or the District Office. Also, the forms can be downloaded from the Internet from the location: http://www.dep.state.fl.us/waste/programs/ dryclean/index.htm To apply to the Drycleaning Solvent Cleanup Program, the application form and site screening form must be completed in accordance with the instructions and guidance manual. The application package must be accompanied by the required attachments and must be signed. It is important that the application packages be complete and that the forms are not altered. Forms that have been altered or application packages that are incomplete will be returned to the applicant. Application packages that are returned will delay the processing of the application. The Department will mail a letter of determination of program eligibility to the applicant once the review process is complete. Information on environmental consultants that are available to complete the site screening portion of the application may be obtained from local telephone or professional directories or local drycleaning associations. Please note that Section 376.3078(7)(a) and (b), [now 376.378(9)(a) and (b)] Florida Statutes, requires owners or operators of drycleaning facilities to install secondary containment of drycleaning solvents, including petroleum-based solvents. Secondary containment requirements provide for containment of accidental spills or leaks until appropriate response actions are taken by the owner/operator to abate the source of the spill and remove the product from all areas on which the product has accumulated. The statute requires that all facilities, regardless of when operations began, shall have secondary containment installed around any solvent or waste solvent storage area by January 1, 1997. Additional details regarding secondary containment requirements are available through the Department's Fax- On-Demand System. Be sure to check out the FDEP's toll-free, Fax-On-Demand System for the Drycleaning Solvent Cleanup Program. This system is updated as new information is available. Currently, the system will allow you to receive program updates, registration forms, guidance for secondary containment and copies of the rule and forms by facsimile. The FDEP Fax-On-Demand System is available 7 days a week, 24 hours a day, by calling (800) 789- 4502. It is presumed that Petitioner received the December 1996 Update at his Facility absent any credible evidence to the contrary. As a result of his attendance at the Department Presentation and his receipt of the above-described informational material from the Department, Petitioner was on notice, in advance of the statutorily-imposed January 1, 1997, secondary containment installation deadline, of his obligation to have secondary containment installed at his Facility by January 1, 1997. The Preparation, Filing, and Denial of Petitioner's Application In or about late May of 1996, following the Department Presentation, Petitioner retained the services of HSA Environmental (HSA) to assist him in applying for the admission of his Facility to the Program. Although Petitioner may have believed that HSA "would do or advise him of all work that was necessary at [his Facility] to get [the Facility] into the [P]rogram," the evidence fails to establish that HSA agreed, in writing or otherwise, to install secondary containment at his Facility. On June 12, 1996, an HSA employee visited Petitioner's Facility to take a soil sample for testing and analysis in order to determine whether there was contamination by dry cleaning solvents on the site. On or about October 30, 1996, HSA sent Petitioner the following letter: In reference to this program, your complete Drycleaning Solvent Cleanup Program Application for this facility is pending due to the following reasons: ? We have not received your application with the required signatures. Please provide the missing information checked above as soon as possible so that we may complete your application and submit to the Florida Department of Environmental Protection. If documents are provided with this letter, please complete that portion that is marked and return the documents to this office. Upon receipt of the above information, your completed Drycleaning Solvent Cleanup Program Application, which includes the Site Screening Report, with required attachments, will be submitted within ten (10) working days with copies provided to you. Thank you for your assistance in this matter. If you have any questions about the information requested on your application in general, please contact us directly. On or about January 29, 1997, HSA sent Petitioner another letter. It read as follows: In reference to this program, your facility was inspected by HSA on June 12, 1996, and the Site Screening Report was completed on July 8, 1996, but your package has been placed in our PENDING FILE. The reason for this is that we have not received your application with the required information and appropriate signatures. Several telephone calls have been made and letters have been sent requesting this information without success. Further, your account shows an outstanding balance of $1300.00. Enclosed is an Application with instructions. Please complete this application, sign Item 18a, 18b and 19 as marked and return it to me in the enclosed self-addressed envelope. Do not worry about obtaining the signature of the Real Property Owner. I will take care of getting his/her signature. Upon receipt of the application and full payment, your completed Drycleaning Solvent Cleanup Program Application will be submitted to the State of Florida Department of Environmental Protection (FDEP). It is in your best interest to take care of this matter quickly. As it stands now you qualify for a $1000.00 deductible when the actual cleanup of your facility starts. This $1000.00 deductible applies until June 30, 1997, and all applications received by FDEP prior to this date will qualify for it. On July 1, 1997, this deductible will be increased to $5000.00 per facility. Therefore, I think you can see that it's in your best interest to have your package submitted prior to June 30, 1997 and qualify for the $1000.00 deductible. In addition, I need you to verify (to include date completed) that you have installed secondary containment structures around or beneath each machine and each area where drycleaning solvents or waste are stored; and, that the floor surfaces of the facility have been sealed. If you have not had secondary containments installed or the floor sealed, then I need to verify that this has been contracted for, provide documentation supporting same, and provide the dates when it will be completed. Thank you for your assistance in this matter. If you have any questions about the information requested or your application in general, please contact me directly. Petitioner subsequently signed a completed Drycleaning Solvent Cleanup Program Application (Application). The Application, which had been completed with HSA's assistance, was filed with the Department on or about April 24, 1997. On the Application, negative answers were given to the following questions: Have secondary containment structures been installed around or beneath each machine or item of equipment in which drycleaning solvents are used? Have secondary containment structures been installed around or beneath each area where drycleaning solvents or waste which contains drycleaning solvents are stored? Have the floor surfaces of the drycleaning facility been sealed or otherwise rendered impervious in any area in which solvents may leak, spill, or otherwise be released? The Application further reflected that, as of the date the Application was completed and signed (on or about April 22, 1997), the Facility was operating as a drycleaning facility. No information was provided at hearing contradicting the foregoing information provided in Petitioner's Application. Post-Application Inspections of Petitioner's Facility Following the filing of the Application with the Department, on July 24, 1997, Rasik Chokshi, an Environmental Specialist II employed by the Florida Department of Health (DOH), conducted an inspection of Petitioner's Facility to determine whether it was in compliance with clean air requirements. (DOH conducts such inspections pursuant to an agreement that it has with the Department.) Petitioner was present at the Facility during the inspection. When conducting inspections of drycleaning facilities, Mr. Chokshi routinely notes whether secondary containment requirements have been met. During his July 24, 1997, inspection of Petitioner's Facility, Mr. Chokshi observed that there was no secondary containment in the drycleaning machine, storage, waste, and spotting board areas of the Facility. Following his inspection, Mr. Chokshi made Petitioner aware of the observations he (Mr. Chokshi) had made regarding the lack of appropriate secondary containment in the Facility. He informed Petitioner that such secondary containment should have been in place by January 1, 1997, and that Petitioner therefore needed to remedy the situation "as soon as possible." Petitioner agreed that secondary containment was needed, and, in response to Mr. Chokshi's inquiry, indicated that he would have the work completed in two months, to which Mr. Chokshi stated, "okay."3 On August 14, 1997, Leslie Smith, an Environmental Specialist with the Department who inspects drycleaning facilities from Ft. Pierce to Homestead,4 conducted a routine inspection of Petitioner's Facility. This was her first visit to the Facility. Ms. Smith's inspection revealed various violations which she noted on an Inspection Exit Summary Form that was mailed to Petitioner the next business day following the inspection. Among the violations she noted were the following: No secondary containment is provided for the drycleaning machine. No secondary containment is provided for the waste containers. No secondary containment is provided for solvent based spotters over one quart in volume. Floors [covered by ceramic tile, with a "very porous" grout] are not sealed. Before leaving the Facility on August 14, 1997, Ms. Smith discussed these violations with Petitioner. Petitioner agreed, in writing, "to provide written documentation of efforts to address the[se] deficiencies" on or before September 5, 1997. Some time between August 14, 1997, and August 30, 1997, Petitioner, at a cost of $1,850.00, had the necessary work done to correct the secondary containment deficiencies noted by Ms. Smith during her inspection. Nonetheless, he did not provide Ms. Smith, by September 5, 1997, with written documentation that such work had been done. On October 13, 1997, Mr. Chokshi paid another visit to Petitioner's facility. During this inspection, he was accompanied by Louis Valcarenghi, a Department Air Pollution Inspector. Ms. Smith had asked Mr. Valcarenghi to look for the presence of secondary containment at the Facility during his inspection. Mr. Valcarenghi's inspection revealed that the Facility was in compliance with air pollution control requirements, and he so informed Petitioner before leaving the Facility. During his inspection of the Facility, Mr. Valcarenghi observed that "[s]econdary containment ha[d] been installed for the dry cleaning machine, waste containers and spotting areas." By memorandum dated October 13, 1997, he advised Ms. Smith of such installation. Denial of Petitioner's Application By letter dated March 20, 1998, the Department advised Petitioner that the Facility was ineligible to participate in the Program. The failure to install secondary containment at the Facility by January 1, 1997, was cited as a reason for the Department's determination of ineligibility. The Department's Enforcement of Secondary Containment Requirements In response to concerns expressed by the owners and operators of drycleaning facilities (through their representatives) about their ability to meet the statutorily- imposed January 1, 1997, secondary containment deadline, John Ruddell, the Director of the Department's Division of Waste Management, sent the following memorandum, dated December 13, 1996 (December 13, 1996, Memorandum) to the lead enforcement officers in the Department's district offices: In the past few weeks, the department has received requests for an extension of the January 1, 1997 deadline for secondary containment from the Neighborhood Cleaners Association, Southeast Fabricare and the Florida Drycleaners Coalition. The reason stated in the request for this extension is a shortage of contractors to complete installation of containment vessels. The statute has been in effect since October 1995; so drycleaner owners and operators have had sufficient notice of the requirement. In addition, drycleaning owners and operators have been reminded of the deadline by notices mailed to each registered drycleaning facility. The department does not have authority to extend this statutory deadline. Drycleaning facility owners missing the deadline are subject to enforcement. However, due to the apparent shortage of vendors and installation contractors, as asserted by the Florida Drycleaning Coalition, Directors of District Management may wish to consider exercising a short term deferral of enforcement action. In determining whether to make such a deferral, the following conditions should be considered: The facility owner or operator should demonstrate that the facility began operations prior to January 1, 1996. Facilities that began operation after that date were required to have secondary containment when operation commenced. The facility owner should have a signed, binding contract, in accordance with Florida Statutes, which cannot be canceled or modified without substantial loss, that was executed by January 1, 1997. The installation shall be completed by April 30, 1997.5 Any such deferral should be limited to the requirements of Section 376.3078(7)(a) [now 376.3078(9)(a)]. No secondary containment requirements under federal or local laws and regulations should be affected by a deferral granted pursuant to the conditions above. The Department has applied the guidelines set forth in the December 13, 1996, Memorandum, not only in exercising its enforcement authority, but also in making Program eligibility determinations, notwithstanding that the memorandum does not expressly address the issue of Program eligibility.6 Facilities that have met the three "conditions" set forth in the December 13, 1996, Memorandum have been deemed eligible by the Department to participate in the Program, even though these facilities did not have the required secondary containment as of January 1, 1997. Petitioner's Facility is not similarly situated to these facilities inasmuch as it meets neither the second "condition" ("signed, binding contract" for secondary containment installation prior to January 1, 1997) nor the third "condition" (completion of installation by April 30, 1997) prescribed in the December 13, 1996, Memorandum. In making Program eligibility determinations, the Department has examined, in addition to the timeliness of secondary containment installation, the nature and sufficiency of the secondary containment devices installed at the facility. The sufficiency of a particular secondary containment device depends on the purpose it is intended to serve. For example, to provide suitable secondary containment for a drycleaning machine, it is necessary to install around the machine a metal pan or other similar structure that cannot be permeated by drycleaning solvents. In the area around a spotting board, where such rigid structures would present a tripping hazard, the Department has reasonably determined that such structures are unnecessary and that floor sealant provides adequate secondary containment. The Department, in determining Program eligibility, has distinguished between the failure to timely install sufficient secondary containment and the failure to maintain sufficient secondary containment that has been timely installed. The former (which is what we have in the instant case), but not the latter, has resulted in a finding by the Department of ineligibility to participate in the Program. Petitioner has failed to demonstrate that the Department, in the past, has knowingly allowed any facility to participate in the Program under circumstances substantially identical to those present in the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that that Petitioner's Facility is not eligible to participate in the Program. DONE AND ORDERED this 4th day of May, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1999.
Findings Of Fact Background And Stipulations. Petitioner, Mad Hatter Utilities, Inc. (Mad Hatter) made application on May 14, 1987, for a permit to construct on a 46-acre site in south central Pasco County a 0.5 million gallon per day (MGD) field-erected, extended aeration wastewater treatment plant and spray irrigation effluent disposal system. The application also proposes the use of a 0.1 MGD temporary packaged facility to provide services during the construction and before operation of the proposed field-erected plant and disposal system. Prior to final hearing, the Department of Environmental Regulation (DER) determined in free-form agency proceedings that reasonable assurances had not been provided that 0.5 MGD of effluent could be disposed of on the site safely and in accordance with the applicable statutes and rules using the proposed spray irrigation disposal system and that the capacity of the plant and disposal system should be limited to 0.1 MGD. Mad Hatter filed a petition challenging the DER's proposed agency action to down-size Mad Hatter's application Love Our Lakes Association (the Association) and Augustine L. Miro (Miro) each filed a petition challenging the DER's proposed agency action to grant the down-sized application. Pasco County intervened in support of the DER's proposed agency action. Also, prior to the hearing, the parties stipulated that the proposed wastewater treatment plant, in itself, provides reasonable assurance that wastewater will be treated in accordance with the requirements of the applicable statutes and DER rules and standards. However, remaining for resolution is the issue of how much effluent can, with reasonable assurance, be disposed of on the site safely and in accordance with the applicable statutes and DER rules and standards using the proposed effluent disposal system. 1/ At the final hearing, the standing of all of the parties was stipulated. Whether Plant Capacity Should Be Limited To Currently Available Effluent Disposal Capacity. In addition, at final hearing, the DER changed its position and urged that a permit could and should be issued to Mad Hatter to construct the proposed 0.5 MGD capacity wastewater treatment plant subject to the installation of a physical "baffle" or partition capable of limiting the actual operational capacity of the treatment plant (and, therefore, the effluent disposal system) to 0.1 MGD. The proposed "baffle" is described by Mad Hatter Exhibit 10, in evidence. Mad Hatter proposed a 0.5 MGD wastewater treatment plant because it is the smallest centralized plant that can be field erected and still provide economies of scale in its construction. The evidence proved that a proposed welded but removable steel "baffle" of the kind described in Mad Hatter Exhibit 10 would, along with other DER controls, provide reasonable assurance that the actual operational capacity of the plant would not exceed the effluent disposal limitation placed on the DER construction permit. Depending on where in the extended aeration chamber the baffle is placed, the reduction in treatment capacity will be proportional to the reduction in size of the aeration chamber, e.g., a reduction to 1/5 of design size will limit effective treatment capacity to 0.1 MGD. In addition to the physical "baffle," typical permit conditions require a wastewater treatment plant operator to report levels of plant activity to the DER and allow the DER to inspect the plant at reasonable times. In addition, customers of a wastewater treatment plant must receive a DER permit to send wastewater to the plant for treatment, and the permit places a limit on the amount of wastewater sent for treatment, giving the DER control over the inflow to the plant (and, therefore, the outflow, too.) Allowing Mad Hatter to build a plant with more capacity than currently available effluent disposal capacity allows Mad Hatter to more cost-effectively provide for anticipated future need for sewage treatment in the Land O'Lakes area. Rather than Mad Hatter or other utilities having to build multiple, inherently less cost-efficient "package plants," each at new construction costs, Mad Hatter could simply remove the "baffle," which itself costs only about $10,000, if additional effluent disposal capacity could be established. Excess plant capacity provides an incentive for Mad Hatter to explore the real possibility of contracting with customers for the use of treated wastewater ("gray water") as a source of additional effluent disposal capacity. The result would comport with the DER's policy to encourage reuse. Capacity Of The Currently Proposed Effluent Disposal System. Mad Hatter proposes to apply 0.41 MGD at an average of 2.4" of wastewater per week to a 43.69 acre spray field area on the site. Mad Hatter's permit application does not specify any spray irrigation schedule or identify non-application days when spraying of effluent would not be possible due to adverse climatic conditions, harvesting conditions, maintenance of irrigation equipment, or other conditions which preclude irrigation. Mad Hatter intends to grow as a cover crop on the irrigation site either bahia hay or other similar grass. Mad Hatter's permit application does not specify what soil-plant system Mad Hatter proposes to employ on the site for nutrient uptake. Mad Hatter plans to install a series of several hundred adjustable sprinkler heads for the distribution of effluent throughout the site. Each head is expected to have a reach of between 50 and 75 feet. Smaller sprinkler heads (18" high) were selected to reduce potential aerosol dispersion of mist during irrigation. Mad Hatter's proposed disposal system design incorporates a total of 1.5 million gallons of effluent storage capacity in two lined holding tanks to be constructed on site. Each tank is designed to be 150' square, with a design depth of three feet plus one foot of freeboard. The bottom and banks will comprise a vinyl liner placed on grade and lapping up onto the sides (above grade) which will consist of earthen berms reinforced by, steel angle irons and support rods. No emergency overflow discharge or "pop-off" device is incorporated for either tank. In the event the tanks become full when no irrigation is possible, tank contents may be routed back to the head of the treatment plant if it is not already overloaded. The capacity of a particular parcel of land to safely and adequately dispose of wastewater by spray irrigation depends on several factors: (1) design and construction of the system, including storage capacity; (2) rainfall; (3) water table; (4) soil composition; (5) permeability or hydraulic conductivity of the soils; (6) evapotranspiration; (7) treatment level of the wastewater; (8) nutrient uptake capability of the ground cover; (9) flow of water on and off the site; (10) classification of area waters, especially downstream; and (II) other characteristics of the immediate vicinity. The parcel of land Mad Hatter has selected for its proposed spray irrigation effluent disposal system is near Land O'Lakes, Pasco County, Florida. It is approximately 1300 feet south of Lake Thomas which is at a higher elevation than the site. The site consists of Zolfo series fine sand to depths of about 35 to 40 feet, below which is a layer of primarily clay to a depth of about 120 feet. The clay is thick enough to protect the Floridan aquifer, which lies still deeper below the surface. The soils found on the proposed disposal site are denominated as Zolfo fine sands under the classification system of the United States Department of Agriculture Soil Conservation Service (SCS). The SCS Soils Atlas for Pasco County describes Zolfo fine sands as follows: The Zolfo series is a member of the sandy, siliceous hyperthermic family of Grossarenic Entic Haplohumods. It consists of somewhat poorly drained, moderately permeable soils that formed in thick deposits of marine sand. These nearly level soils are on the uplands. The seasonal high water table is at a depth of 24 to 40 inches for 2 to 6 months during most years. It is at a depth of 10 to 24 inches for as long as 2 weeks in some years. Slopes range from 0 to 2 percent. The Mad Hatter site displays the fluctuating seasonal high water table level characteristic of Zolfo soils. During soils testing associated with the permit application process, the water table on site was observed at varying levels ranging from six feet below the surface (in October) to at or near the surface (in July), with average levels from two to three feet below surface observed in September, December, and February. The Lake Thomas area, as is the case with the Land O'Lakes region in general, has poor drainage. This area, including the proposed site, which formerly had been an orange grove like others still located in the area, historically has experienced periods of persistent standing water and saturated soil conditions during the rainy season. The area receives more than half of its annual rainfall (35.46") during the rainy season, the period from June through September. Ground penetrating radar tests and soils analysis indicated no significant paleosinks on the site. There were no indications of karst formations at the site. The site, as it presently exists, does not handle stormwater runoff efficiently. Runoff flows onto the site from upstream properties north and east of the site. The furrows on the site which remain from its use as a citrus grove allow stormwater to sheet flow onto the site and sit in numerous depressions until it leaves the site by percolation. However, Mad Hatter will grade the site to eliminate the depressions. In addition, Mad Hatter proposes to reestablish the former swale or ditch along Lake Thomas Road to facilitate proper drainage for the properties east of the site. This swale would tie into the existing ditch along the pipe beneath Drexel Road. The swales will divert runoff water originating at higher elevations off-site from the site and direct the runoff to a drainage ditch and culvert leading off the parcel near the midpoint of the western boundary. In extremely wet conditions, runoff might back up in the culvert, the swales and an existing drainage ditch running east from the culvert towards the middle of the site. The grading and drainage improvements to which Mad Hatter has committed would transmit stormwater in a more efficient and direct manner and will be easy to maintain. These improvements would reduce the quantity of water that occurs on the site by diverting runoff from adjacent properties so that it no longer flows onto the site. This would enhance the capability of the site to treat or dispose of effluent, Even under existing or natural conditions, the possibility of surface runoff from the site flowing into Lake Thomas is remote. The natural flow of groundwater across the site is west-southwest. Therefore, the likelihood of groundwater flowing to the north to Lake Thomas is very remote. As an extra assurance against surface runoff into Lake Thomas, Mad Hatter proposes to construct a two- to three-foot high berm along the site's north property line as described in Mad Hatter Exhibit 2F, in evidence. (This proposal is not a part of the application, but Mad Hatter committed to it at final hearing.) This berm would further preclude surface runoff from flowing in the direction of Lake Thomas and would provide 24 acre-feet or 7.8 million gallons of storage under "worst case" circumstances until water could flow naturally. The proposed berms and drainage improvements will have the net effect of decreasing the amount of water added to the site during rainfall, will decrease sheet flow across the site, and will keep water from "sheeting" across Lake Thomas Road, which is directly to the north of the site, and mixing with the waters of Lake Thomas. A groundwater monitoring plan is a hydrological study of a site to describe the subsurface lithology of the site, identify the depth of the water table, or any confining layers, determine the direction of groundwater flow and determine the location of any public or private potable water supply wells in the area. The groundwater monitoring plan for the site proposes a background well in the northeast corner of the site to sample water upstream of the site and three wells to be placed on the south and west property lines to demonstrate any impacts of effluent on the groundwater before it leaves the property. The groundwater monitoring plan proposed by Mad Hatter is adequate. Using an extended aeration technique, a clarifier, more-than-adequate detention time for chlorination and a tertiary filter, Mad Hatter's treatment plant will treat wastewater to relatively advanced stages. The proposed bahia hay or similar grass ground cover will provide adequate nutrient uptake upon application of the wastewater to the land. Section 7.5 of the Land Application Of Domestic Wastewater Effluent In Florida manual, which is incorporated by reference into Chapter 17-6, Florida Administrative Code, requires that a detailed soil-vegetation management program be included in the engineering report in an application for a wastewater treatment plant permit. Under Section 7.1 of the Manual, this requirement can be waived in 0.1 MGD plant proposals but is mandatory for proposed plants as large as 0.5 MGD. There was no evidence as to exactly where between 0.1 and 0.5 MGD the Section 7.5 requirement becomes mandatory. It is not possible to predict with complete accuracy the capacity of a parcel of land to dispose of wastewater effluent, even taking as many factors into account as possible. Only actual operational experience will be able to pinpoint disposal capacity. The operating permit can and should be adjusted to actual experience, whether up or down. Mad Hatter presented evidence through the opinion testimony of a qualified expert that the disposal system has a capacity of 0.41 MGD. This opinion does not account for variations in nutrient uptake because they were not expected to make a significant difference in capacity. It assumes no drainage improvements on the site and assumes that sheet flow onto the site equals sheet flow off the site. In preparing the water balances that support the opinion, the annual rainfall in 1983 or 1984 (whichever represents the highest annual rainfall in the last ten years) was used, and water loss by evapotranspiration was conservatively estimated by assuming grasses at the site and making downward adjustments from data collected by the National Oceanic and Atmospheric Administration (NOAA) at Lake Alfred. To estimate water loss by percolation, the lowest permeability results from double ring infiltration tests (46.5 minutes/per inch) were converted using a conservative factor of 1.4 percent, resulting in water loss through percolation of just 0.421 inches per day. In its document entitled "The Land Treatment of Municipal Wastewaters," the federal Environmental Protection Agency (EPA) recommends applying a 4-10 percent reduction factor to measured percolation values to estimate water loss by percolation. But it is not clear what kind of percolation tests are recommended by the EPA. Expert witnesses for the DER accepted the water balance methodology used and calculations made by Mad Hatter. But the DER witnesses stressed that the water balance is, as a matter of DER policy, only a guide and a starting point in assessing the capacity of a particular parcel of land to dispose of effluent. This is because unique characteristics of a particular site (such as soil composition, grade and vegetation) can result in Significantly different capacity than calculated by the water balance. Based on a site visit on July 22, 1987, and other eyewitness reports, the DER experts were of the opinion that only 0.1 MGD of effluent could be disposed of as proposed. On July 22, 1987, the sky was clear and temperatures were in the 90s. The last rain was less than one inch on July 20, 1987; yet, 30 percent of the site was covered by two inches of water, and the ground was saturated all over the site on July 22. The water table generally was less than 2 feet below the surface on July 22. Local residents told the DER experts and later testified at final hearing that similar or wetter conditions are prevalent generally throughout the months of May through August. When saturated conditions such as were observed on July 22, 1987, prevail at the site, spray irrigation of effluent cannot take place without causing surface water sheet flow runoff or ponding prohibited by the DER Land Application Manual. During periods when no spray irrigation is possible, it will be necessary for Mad Hatter to store treated wastewater for disposal at a later time when soil conditions permit. Primarily because Mad Hatter's application called for installation of a 0.1 MGD interim package plant during field erection of the proposed permanent plant and because 0.1 MGD was the threshold size for a mandatory groundwater monitoring plan, the DER conservatively and grossly estimated site capacity to be 0.1 MGD. Pasco County's expert witness also based his opinion on a water balance. Like the Mad Hatter expert, the County expert did not account for variations in nutrient uptake, assumed no drainage improvements, and assumed no net sheetflow on or off the site. The County expert did not use the double ring infiltration method Mad Hatter's expert used or any other site specific data to measure hydraulic conductivity. He estimated hydraulic conductivity at eight feet per day based on regional data from the area of the Southwest Florida Water Management District. It is not understood how this measure of hydraulic conductivity relates to either the 46.5 minutes per inch infiltration rate observed in Mad Hatter's double ding infiltration test or the 0.421 inch per day percolation water loss rate used in Mad Hatter's water balance. But the County expert specifically testified that he does not agree with Mad Hatter's methodology for obtaining a percolation water loss rate. He testified that there is no relationship between the results of a double ring infiltration test and the hydraulic conductivity of soil. The former, he says, just measures the rate at which water can enter the "soil horizon" and is a function solely of the permeability of the top 6 inches or so of the soil; on the other hand, he says, the latter measures the rate at which water moves vertically through saturated soil and leaves the soil from below. Mad Hatter did not rebut this testimony. Using his method, the County expert opinion was that 0.1 MGD of effluent could be disposed of at the site with only three days (or, at that rate, 300,000 gallons) of storage for the average annual rainfall but that 16 days (or 1,600,000) of storage would be required to accommodate the 10-year recurrence interval, i.e., the heaviest rainfall experienced within the previous decade. The DER's Land Application Of Domestic Wastewater Effluent In Florida manual, at Section 1.10, provides in pertinent part: Since soil-plant relationships are complex, the initial design loading rate should be conservative; a maximum annual average of two inches per week is recommended. The department will consider a rate higher than the two inch per week average provided the rate is substantiated in the engineering report on the basis of the renovating and hydraulic capacity of the soil-plant system, the existing quality and use of surface or groundwater in the area, and other hydrogeologic conditions. A two inch per week loading rate equates to 341,900 gallons per day; 0.41 MGD equates to 2.40 inches per week; 0.1 MGD equates to just 0.59 inches per week. The DER's Land Application Manual requires a minimum effluent storage volume equal to three days maximum daily flow of the treatment plant. In addition, the manual recommends a storage volume equal to the plant's maximum daily flow multiplied by the number of non-application days necessary to accommodate the 10-year recurrence interval. If planned storage capacity were exceeded during continuing wet weather, Mad Hatter would attempt to return effluent overflow to the head of the plant, if possible. If there is no room at the head of the plant, approximately 24 acre-feet or 7.8 mullion gallons of effluent could accumulate on the site after the berms are constructed and swales improved, as proposed. If an emergency of such proportions developed that the emergency capacity of the site were exceeded, overflow from the site would be discharged, eventually, into the Anclote River but probably not into Lake Thomas. Mad Hatter failed to provide reasonable assurances that 0.41 MGD of treated wastewater cane be applied to the proposed disposal site without surface discharge or runoff in all weather conditions, including wet weather. Mad Hatter failed to provide reasonable assurances that effluent storage capacity proposed by Mad Hatter would be adequate to accommodate the total volume of effluent which would have to be stored on the site during wet weather saturated conditions if Mad Hatter were permitted to treat more than 100,000 gallons of sewage per day. There are reasonable assurances that 0.1 MGD of treated effluent can be applied to the proposed site without surface discharge or runoff in all weather conditions. The 1.5 million gallon effluent storage capacity proposed by Mad Hatter would be adequate to accommodate the volume of effluent which would have to be stored during wet weather saturated conditions if Mad Hatter were permitted to treat 0.1 MGD of sewage. Because the natural flow of groundwater and surface water is away from Lake Thomas, it is unlikely that groundwater or surface water contamination caused by the plant or spray field would impair water quality in Lake Thomas, particularly if only 0.1 MGD of treated effluent is disposed of on the site in the manner proposed. In the absence of a demonstration by Mad Hatter of additional effluent disposal capacity at alternative sites or through reuse agreements with local developers, it is not arbitrary for DER to require that the effective treatment capacity of the proposed Mad Hatter wastewater plant be limited to the demonstrated effluent disposal capacity of the proposed site by installation of a removable baffle in the extended aeration chamber of the plant.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation enter a final order granting the application of Mad Hatter Utilities, Inc., subject to the standard DER general permit conditions and subject to the following special permit conditions: A welded but removable steel "baffle," as described in Mad Hatter Exhibit 10, shall be incorporated in the proposed treatment plant reducing the size of the operable extended aeration chamber to one-fifth the original size and thereby reducing the operable capacity of the treatment plant to one-fifth, from 0.5 MGD to 0.1 MGD, until Mad Hatter can establish 0.5 MGD disposal capacity by reuse or by additional disposal acreage or both. Swales shall be improved and dug and berms constructed on the disposal site, as described in Mad Hatter Exhibit 2F. Bahia hay or, subject to DER approval, other similar grass shall be planted and maintained on the disposal site as the vegetative cover crop for nutrient uptake. Mad Hatter shall specify, subject to other permit conditions, its proposed spray irrigation schedule, including non-application days when spraying of effluent would not be possible due to adverse climatic conditions, harvesting conditions, maintenance of irrigation equipment, or other conditions which preclude irrigation. RECOMMENDED this 12th day of January, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1988.
Findings Of Fact Petitioner is Arthur L. Jones, Trustee of the Arthur L. Jones Revocable Trust, also known as Eastlake Woodlands Shopping Center ("Eastlake"). Petitioner is not and never has been responsible for the discharge of pollutants at Eastlake within the meaning of Section 376.302. On November 9, 1993, Petitioner requested a determination of eligibility under the "Good Samaritan" program authorized in Section 376.305(6). Petitioner seeks reimbursement of $644,712 in costs associated with the assessment and remediation of perchloroethylene ("PCE") contamination at Eastlake. From May, 1982, through May, 1986, Eastlake included a dry cleaning establishment among its tenants. The dry cleaning establishment utilized PCE. PCE contamination was discovered in June, 1992, when a Publix Supermarket adjacent to the former dry cleaning business ("Publix") requested an environmental assessment as part of its expansion at Eastlake. The environmental assessment was performed by Chastain-Skillman, Inc. ("Skillman"). Skillman first discovered PCE contamination at the site as a result of tests of groundwater obtained from behind the former dry cleaning establishment. From July, 1992, through August, 1992, Skillman confirmed the PCE contamination through tests of additional groundwater samples from 10 other locations. In October, 1992, Petitioner orally notified Respondent of PCE contamination at the site. The PCE contamination was not reported to Respondent's Emergency Response Coordinator. The PCE contamination was not an emergency. Emergencies typically include incidents such as a petroleum spill related to a vehicular accident, a chemical spill, or a fire related release. The PCE contamination did not constitute an imminent threat to the public health, safety, and welfare. It did not constitute a threat to potable water wells at the site. PCE is a solvent commonly used in the dry cleaning business. Release of PCE is a relatively common occurrence in the dry cleaning business. On September 27, 1993, Petitioner and Respondent entered into a consent order with regard to PCE contamination at the site. In relevant part, the consent order requires Petitioner to submit a Contamination Assessment Report and Remedial Action Plan. Petitioner submitted a Contamination Assessment Report in November, 1992. Petitioner did not submit a Remedial Action Plan because Respondent placed a moratorium on enforcement actions undertaken with regard to PCE contamination at dry cleaning establishments. Respondent is in the process of implementing a program for state funded cleanup of contaminated dry cleaning sites throughout the state. Respondent is developing a priority system for cleanup of contaminated dry cleaning sites based upon relative threat to the public health and environment. There are approximately 2,800 contaminated dry cleaning sites around the state that will be affected by Respondent's dry cleaning program. Petitioner is entitled to apply for reimbursement of future costs once Respondent implements its dry cleaning program. Respondent has issued a policy memorandum concerning the review of Good Samaritan applications. Respondent's policy differentiates between petroleum contamination and non-petroleum contamination, such as PCE contaminated sites. Reimbursement of petroleum contamination is funded through the Inland Protection Trust Fund ("IPTF"). Reimbursement of non-petroleum contamination is funded through the Water Quality Assurance Trust Fund ("WQATF"). IPTF funds are statutorily limited to reimbursement of costs associated with petroleum contamination. Respondent's policy is to exhaust the enforcement process before WQATF trust funds are utilized for the assessment and remediation of non- petroleum contamination. Respondent's policy requires a Good Samaritan to obtain prior approval from Respondent's Emergency Response Section or On-Scene Coordinator before initiating cleanup of a non-petroleum site such as the PCE contaminated site at Eastlake. The requirement for prior approval is designed to allow Respondent to preserve the amount of personnel, equipment, and resources available for statutorily prescribed priorities, including emergency responses. 2/ The requirement also allows Respondent to determine the endpoint of the emergency phase of a cleanup and the beginning of the remedial phase of the cleanup. The requirement for prior approval may be waived in the event of an imminent hazard. Respondent adequately explicated its non-rule policy for a moratorium on dry cleaning sites and for prior approval of remediation of non-petroleum sites including dry cleaning sites contaminated with PCE. Respondent's explication was adequate even if its policy constitutes an unwritten rule within the meaning of Section 120.57(1)(b)15, Florida Statutes. Petitioner failed to show good cause for waiver of the requirement for prior approval. The PCE contamination at the site was neither an emergency nor an imminent hazard. The public was restricted from the contaminated area by a fence surrounding the site. The public was not exposed to or threatened with contamination by inhalation. No potable water wells are near the site. Therefore, there was no threat of public access to contaminated drinking water. Petitioner did not obtain prior approval for its remediation of the site. Remediation was undertaken to complete the Publix expansion in a timely manner. Petitioner's efforts in assessing and remediating the site have been exemplary. Petitioner has fully cooperated with Respondent in assessing and remediating the site. In July, 1993, Petitioner retained American Compliance Technologies ("ACT") as a consultant to assist Petitioner in the remediation of the contaminated site. ACT prepared a health and safety plan for workers on the site. The plan addressed the risk to workers of exposure to PCE during construction and demolition activities necessary for the Publix expansion. Construction and demolition activities included removal of the concrete slab at the location of the former dry cleaning business. Disturbance of the soils contaminated with PCE created a potential for exposure of workers to PCE. The health and safety plan developed by ACT required workers to wear standard protective gear utilized by the industry. The plan satisfied the requirements of OSHA. ACT did not prepare a risk assessment addressing the potential for exposure of the general public to PCE. Nor did ACT prepare a risk assessment for the potential impact of PCE on groundwater or potable wells. The PCE contamination did not constitute an imminent threat to the public health, safety, and welfare.
The Issue The issue in this case is whether Respondent KW Resort Utilities Corp. ("KWRU") is entitled to issuance, by Respondent Department of Environmental Protection ("DEP"), of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021 (collectively, the "Permit at Issue"), authorizing the major modification of KWRU's existing permit to operate a domestic wastewater facility located at 6630 Front Street, Stock Island, Florida 33040. The Permit at Issue would authorize the expansion of KWRU's existing domestic wastewater facility and the installation of two additional underground injection wells.
Findings Of Fact The Parties Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Last Stand has challenged the Permit at Issue in this proceeding. Petitioner George Halloran is a natural person residing in Key West, Florida, and is a member of Last Stand. Halloran has challenged the Permit at Issue in this proceeding. Respondent KWRU is a Florida corporation. KWRU is the wastewater utility service provider that owns and operates the Existing Wastewater Facility2/ and is responsible for its design, construction, operation, and maintenance. It is the applicant for the Permit at Issue in this proceeding. Respondent DEP is the state agency charged with administering the domestic wastewater program in Florida pursuant to chapter 403, Florida Statutes, implementing, as applicable, rules codified at Florida Administrative Code Chapters 62-4, 62-302, 62-303, 62-520, 62-528, 62-600, and 62-620, and various industry standards and manuals incorporated by reference into DEP rules. DEP's proposed agency action to grant the Permit at Issue is the subject of this proceeding. Background and Overview Domestic Wastewater Regulation in the Florida Keys The State of Florida has recognized the need to protect the Florida Keys' unique, sensitive environmental resources. To that end, portions of the Florida Keys are designated, pursuant to statute and by DEP rule, as an Outstanding Florida Water ("OFW"). § 403.061(27), Fla. Stat.; Fla. Admin. Code R. 62-302.700(9). The Florida Legislature also designated the Florida Keys an Area of Critical State Concern. § 380.0552, Fla. Stat. A stated purpose of this designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater facilities that meet the requirements of section 403.086(10). Additionally, the Florida Legislature has enacted section 403.086(10), which addresses the discharge of domestic wastewater in the Florida Keys. That statute finds that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. Section 403.086(10) directs that after December 31, 2015, all new or expanded domestic wastewater discharges must comply with the treatment and disposal requirements of the statute and DEP rules. Specifically, domestic wastewater treatment facilities having design capacities greater than or equal to 100,000 gallons per day must provide basic disinfection of the wastewater pursuant to DEP rule and must treat the wastewater to a level of treatment, which, on a permitted annual average basis, produces an effluent that contains no more than the following concentrations of the specified constituents: Biochemical Oxygen Demand ("CBOD5") of 5 milligrams per liter ("mg/L"); Suspended Solids of 5 mg/L; Total Nitrogen, expressed as N of 3 mg/L; and Total Phosphorus, expressed as P of 1 mg/L. Collectively, these effluent standards constitute the "advanced wastewater treatment" ("AWT") standards. Section 403.086(10)(e) also imposes requirements regarding disposal of treated domestic wastewater effluent through underground injection. Section 403.086(10)(e)1. requires Class V injection wells serving domestic wastewater treatment facilities having design capacities of less than one million gallons per day (hereafter "MGD") to be at least 90 feet deep and cased to a minimum depth of 60 feet, or to such greater cased depth and total well depth as may be required by DEP rule. Section 403.086(10)(e)2. requires Class V injection wells serving wastewater treatment facilities with design capacities greater than or equal to 1 MGD, excluding backup wells, to be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by DEP rule. The Existing Wastewater Facility KWRU currently is permitted, pursuant to Permit FLA014591 (the "Existing Permit"), to operate a domestic wastewater facility (the "Existing Wastewater Facility" or "Facility")3/ located at 6630 Front Street, Stock Island, Florida. Stock Island is located immediately east and slightly north of Key West. By way of background, KWRU's domestic wastewater system currently consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and the Existing Wastewater Facility, which treats the wastewater and then sends it either as reclaimed water for reuse as irrigation water at the Key West Golf Club, or for toilet flushing or air conditioning makeup water at other facilities specified in the Existing Permit,4/ or disposes of it as treated effluent through two underground injection wells. No modifications to the collection or transmission systems have been proposed or challenged. Thus, only the proposed modifications to the Existing Wastewater Facility are at issue in this proceeding. The Existing Wastewater Facility serves residential and commercial properties located on Stock Island, Florida, immediately adjacent to Key West in the lower Florida Keys. Specifically, the Facility treats domestic wastewater originating from approximately 1,416 existing residential connections and 216 commercial connections. The commercial connections consist of a convalescent center, a college, restaurants, recreational vehicle parks, an animal clinic, and a hospital. There are no industrial wastewater contributors to the Facility. The Facility includes a Category III, Class C wastewater treatment facility operating under the Existing Permit. It is staffed by a Class C or higher operator for six hours a day, seven days per week, in accordance with the Existing Permit and applicable DEP rules. The Facility has a design capacity and a permitted capacity5/ of .499 MGD annual average daily flow ("AADF") and consists of two treatment trains having capacities of .249 MGD and .250 MGD AADF. These treatment trains are piped together to allow operation of the Facility as a single plant. The Facility was upgraded in the mid-2000s and is capable of treating influent wastewater to AWT. However, as authorized under the Existing Permit, the Facility currently treats domestic wastewater to secondary standards, which do not impose nitrogen or phosphorous limits. Under the Existing Permit and in accordance with section 403.086(10), the Facility is not required to meet AWT standards until January 1, 2016. Vacuum and gravity collection systems collect the domestic wastewater from the properties that KWRU services. Wastewater influent from the collection systems flows through the transmission system to a splitter box at the KWRU property, where it is sent to the Facility for treatment. The Facility contains two treatment trains, each consisting of a bar screen, an equalization tank, an aeration tank, an anoxic zone, a post-aeration basin, a clarifier, a silica sand/river rock filter, and a chlorine contact chamber. The bar screens, which constitute the first step in the treatment trains, remove floatables from the wastewater stream. After passing through the bar screens, the wastewater drops into two equalization tanks. As their name indicates, the equalization tanks smooth out the peaks in wastewater flow to the Existing Wastewater Facility. Specifically, wastewater flows to the Facility in large volumes during two periods each day, morning and evening, corresponding with peak water use by the serviced properties. During these large flow volume periods, the equalization tanks fill up with sewage influent, which is meted out during lower-flow periods for treatment by the Facility. In this manner, the Facility treats roughly the same amount of wastewater per hour, which is key to the steady state operation of, and the reliable treatment of the wastewater by, the Facility. From the equalization tanks, the wastewater is directed to the three-stage bioreactor portion of the treatment process. Microorganisms are utilized at each stage to break down the waste. The first stage of the bioreactor process occurs in the aeration basins. Here, wastewater enters the fine-air zone, where it and the microbes used in this stage of the treatment process come into contact with tiny oxygen bubbles. The microorganisms use the oxygen to oxidize the waste and complete the ammonification of the wastewater. The wastewater then passes through bulkheads to the anoxic zones, where the oxygen level is extremely low. In the anoxic zones, bacteria denitrify, or remove nitrogen from, the wastewater. The wastewater is then sent to the post-aeration basins, where excess carbon is removed through oxidation. Thereafter, the wastewater is sent to the clarifiers, where the microorganisms settle out of the wastewater to form a solid precipitate on the bottom of the tank. The precipitate is plowed into a sump and returned by pump to the bioreactors, where the microorganisms are reused in the activated treatment process. When the microorganisms cease to optimally function in treating the waste, they are culled from the treatment process and sent to a digester, where they oxidize, through the endogenous decay process, to the point that they die and only their endoskeletons remain. Sludge, consisting of the endoskeletons and water, is pumped to a sand filter drying bed. The filtrate water is pumped back through the Wastewater Facility to be reused in the wastewater treatment process, while the dried endoskeletons, which are termed "biosolids," are transported offsite for disposal in a Class I landfill. The treated, clarified wastewater is pumped through sand/rock filters, then to the chlorine contact chambers where it is exposed to a minimum of 15 minutes of chlorine disinfection. As noted above, the Existing Permit authorizes the reuse of reclaimed water for, among other uses, irrigation by land application at the 100.27-acre Key West Golf Club golf course. The golf course irrigation system consists, in part, of two unlined interconnected ponds that do not directly discharge to surface waters6/ and that have a storage capacity exceeding one million gallons. KWRU sends reclaimed water to the golf course through its reclaimed water reuse system only in the quantity required to meet the course's irrigation needs. The Existing Permit imposes a minimum residual chlorine level of 1 mg/L and a maximum of 5 mg/L turbidity for the treated wastewater to be considered reclaimed water that can be reused as irrigation at the golf course or as otherwise authorized in the Existing Permit. If the treated wastewater does not meet these standards, switchover/interlock equipment at the Facility disables the power to the pumps that send the reclaimed water offsite for reuse.7/ At that point, the treated wastewater is considered treated effluent.8/ The effluent fills the effluent wet well and is piped directly to the existing underground injection wells for disposal. Pursuant to the Existing Permit, the effluent is disposed of by gravity flow through two Class V, Group 3, ten- inch underground injection wells bored to a depth of 110 feet and cased to a minimum depth of 60 feet. Collectively, the two injection wells have a maximum permitted capacity of .499 MGD AADF. As authorized by the Existing Permit, the underground injection wells discharge the effluent to Class G-III ground water within the Key Largo Limestone.9/ The underground injection wells are not the primary means of disposal for the treated wastewater, in the sense that they are used to remove effluent from the Facility only if and when reclaimed water is not needed by the golf course or the other receiving facilities, or when the treated wastewater does not meet the required residual chlorine and turbidity limits discussed above. The Existing Permit and the activities authorized thereunder are not at issue in this proceeding. Activities Authorized by the Permit at Issue The Permit at Issue proposes to authorize the construction of a new .350 MGD treatment train, which will increase the design capacity and permitted capacity of the plant from .499 MGD to .849 MGD AADF. The proposed modification of the Existing Wastewater Facility entails the addition of a 90-foot diameter tank containing an influent screen, a 105,554-gallon influent equalization tank, a 163,000-gallon aeration chamber, a 154,725-gallon post-anoxic chamber, a 35,525-gallon re-aeration zone, a 112,062-gallon clarifier, and a 317,950-gallon digester. The sand filters and chlorine contact chambers currently in use will be expanded to accommodate flows from the new treatment train, and the chlorine contact chambers will be changed to liquid bleach feed. The Permit at Issue also proposes to authorize the construction and operation of a new .499 MGD AADF underground injection well system consisting of two new Class V, Group 3 ten- inch wells, drilled to a depth of at least 110 feet and cased to a depth of at least 60 feet, which would discharge effluent to Class G-III ground water within Key Largo Limestone. When placed into service along with the two existing injection wells, the total design capacity and permitted capacity of all four underground injection wells would be .998 MGD AADF.10/ The existing reclaimed water reuse system for the Key West Golf Club or the other receiving facilities currently is authorized for a permitted flow capacity of .499 MGD AADF and a design capacity of 1 MGD AADF. The Permit at Issue would authorize the construction of a new reclaimed water reuse system having a permitted capacity of .849 MGD AADF; however, the design capacity of the system remains 1 MGD AADF, and the amount of reclaimed water sent to the golf course for reuse as irrigation is not being changed by the Permit at Issue from that currently authorized by the Existing Permit. Hereafter, the proposed modifications to the Existing Wastewater Facility that are the subject of the Permit at Issue are referred to as the "Project." The expanded facility resulting from completion of the Project is referred to as the "Expanded Wastewater Facility." The Existing Wastewater Facility treatment trains will be modified to meet the AWT standards as of January 1, 2016. Specifically, an alkalinity control system, a carbon injection system, and an alum injection will be added and certain aspects of the wastewater treatment process will be modified as necessary to meet the AWT standard. The new treatment train proposed as part of the Project will be designed to meet the AWT standards upon operation, which will not occur sooner than 2016. Accordingly, as required by section 403.086(10(d)1., all effluent from the Expanded Wastewater Treatment Facility will meet the AWT standards as of January 1, 2016. As a result of conversion of the wastewater treatment process to AWT, and even assuming all treated effluent is injected down the wells, total nitrogen loading will be decreased from 58 pounds per day to 15.9 pounds per day and total phosphorous loading will be decreased from 14.4 pounds per day to 5.3 pounds per day. This is the case even though the volume of effluent disposed of through the wells may as much as double. Only the activities comprising the Project, which are the proposed to be authorized by the Permit at Issue, are the subject of this proceeding. The Permitting Process The overarching purpose of the wastewater facility permitting process, including permitting of modifications to an existing wastewater facility, is to ensure that the wastewater facility does not discharge wastes to any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such waters. This is accomplished by requiring the facility to be designed, constructed, and operated in accordance with applicable DEP rule standards, which incorporate industry standards. Fla. Admin. Code R. 62- 600.100(1). Similarly, the overarching purpose of the Underground Injection Well System permitting process is to protect the quality of underground sources of drinking water and prevent degradation of the quality of other aquifers adjacent to the injection zone that may be used for other purposes. This is accomplished by requiring underground injection wells to be designed, constructed, and operated in accordance with applicable DEP rule requirements and standards. Fla. Admin. Code R. 62- 528.100(1). The Wastewater Facility or Activity Permit Application Form 1, General Information, and Application Form 2A, Permit for Domestic Wastewater Treatment and Reuse or Disposal Facility, which are adopted by rule, are the forms that must be completed and submitted to DEP to receive authorization to modify existing wastewater facilities or construct new wastewater facilities. This form includes a list of requirements, some (but not necessarily all) of which apply to proposed modification of an existing wastewater facility. The form requires that a Florida- licensed P.E. certify that the engineering features of the project have been designed by the engineer in conformance with the sound engineering principles applicable to such projects, and that, in his or her professional judgment, the facility, when properly constructed, operated, and maintained, will comply with all applicable statutes and the rules. The Application to Construct/Operate/Abandon Class I, III, or V Injection Well System, which is adopted by rule, is the application form that must be completed and submitted to DEP to receive authorization to construct and operate a Class V Injection Well System. This application form includes a list of requirements, some (but not necessarily all) of which apply to a specific underground injection well construction project. The form requires that a Florida-licensed P.E. certify that the engineering features of the injection well have been designed and examined by the engineer and found to conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application. By signing and sealing the application, the P.E. certifies that, in his or her professional judgment, there is reasonable assurance that the injection well, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules. Once the application forms are submitted, DEP permitting staff reviews the applications and determines whether items on the forms and any materials submitted to support those items are incomplete or need clarification. In that event, staff sends the applicant a Request for Additional Information ("RAI"), requesting the applicant to provide additional information to address incomplete or unclear aspects of the application. Once the applicant has provided information sufficient to enable DEP to review the application for issuance or denial of the permit, DEP determines the applications complete and reviews the project for substantive compliance with all applicable statutory and rule permitting requirements. DEP is authorized to issue the permit, with such conditions as it may direct, if the applicant affirmatively provides reasonable assurance, based on the information provided in the application, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of DEP standards or rules proposed in the application. Fla. Admin. Code R. 62-4.070(1). If the applicant fails to provide such reasonable assurance, the permit must be denied. Conversely, if the applicant provides such reasonable assurance, the applicant is legally entitled to issuance of the permit. Engineering Design of the Project KWRU retained Weiler Engineering Corporation to design the proposed modifications to the Existing Wastewater Facility and the new underground injection well (again, collectively referred to as the "Project") and to prepare and submit the applications for the Permit at Issue to DEP. Edward Castle and Christopher Johnson prepared the applications for the Permit at Issue. As the applicant, Johnson signed the application documents as required pursuant to the application form. As the engineer of record, Castle signed and sealed the certifications in the application forms, representing that he was the engineer in responsible charge of preparing the Project's engineering documents. Castle's signature and seal on the application forms for the wastewater treatment facility expansion portion of the Project constitute his representation that he designed and examined the engineering features of the wastewater treatment facility expansion; that these features conform to sound engineering principles applicable to the Project; and that, in his professional judgment, the wastewater treatment facility expansion portion of the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. Similarly, Castle's signature and seal on the application to construct the new underground injection wells constitute his representation that he designed the engineering features of these injection wells; that the injection wells conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that in his professional judgment, there is reasonable assurance that the wells, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules, including the requirement that the effluent discharged through the injection wells meet AWT standards as of January 1, 2016. As previously noted, the design capacity of wastewater treatment portion of the Expanded Wastewater Facility is proposed to be .849 MGD AADF. Castle selected this design capacity based on historic wastewater flows at the Existing Wastewater Facility and foreseeable projected wastewater treatment capacity demand in the future.11/ Specifically, to estimate future capacity demand, Castle considered development agreements, requests for utility service, the existence of scarified property and applicable development density, wetslips, recent property sales, and estimated and proposed in-fill development on Stock Island. He projected residential development wastewater treatment demand based on historic actual flow data from the Monroe County Sanitary Wastewater Master Plan ("Master Plan"), in conformance with the Recommended Standards for Wastewater Facilities, the so- called "Ten States Standards," a wastewater systems design and planning guidance document incorporated by reference in rule 62- 600.300(4). Additionally, Castle applied the estimated sewage flows codified in Florida Department of Health rule 64E-6.008, Table I, System Design Estimated Sewage Flows ("DOH Table I"), to estimate wastewater treatment demand for projected commercial and hotel development uses. Once Castle had projected wastewater capacity demand for residential and hotel/commercial uses at buildout on Stock Island, he factored in an additional 15 percent capacity safety factor to derive the .849 MGD AADF design capacity for the Expanded Wastewater Facility. Castle chose AADF, rather than the maximum monthly average daily flow or three-month average daily flow, as the timeframe for the design capacity based on historical flow amounts to the Existing Wastewater Facility and because of insignificant seasonal variations in historical flows to the Facility.12/ This is because the population on Stock Island contributing flow to the Existing Wastewater Facility is largely comprised of non-seasonal residents and commercial operations.13/ Nonetheless, to ensure the Expanded Wastewater Facility will have adequate capacity to effectively treat wastewater to the required standards during higher flow periods that may result from non- residential seasonal occupancy in the future, Castle assumed year-round, 100 percent occupancy for the projected hotel and commercial development on Stock Island in determining the design capacity for the Expanded Wastewater Facility. Castle estimated a peak hourly flow of 1.273 MGD for the Expanded Wastewater Facility. This figure estimates the maximum flow through the facility on an hourly basis specifically to take into account the diurnal variability of wastewater flow entering the facility. By definition, the peak hourly flow is a maximum hourly flow rather than the sustained flow or volume into or through the facility. The projected maximum hourly flow of 1.273 MGD, which was determined by multiplying the annual average daily flow by a peaking factor of 1.5, is an estimate of the maximum hourly flow wastewater coming into the Expanded Wastewater Facility's equalization tanks. Importantly, it is not the volume of wastewater flow, on an annual average daily basis, that will leave the facility's equalization tanks and flow through the facility's treatment process. Put another way, the 1.273 MGD peak hourly flow is not the Expanded Wastewater Facility's design capacity. As previously noted, the permitted capacity of the wastewater treatment portion of the Expanded Facility also would be .849 MGD AADF. The permitted capacity is the amount, on an annual average daily flow basis, that the wastewater treatment portion of the Expanded Wastewater Facility is authorized to treat and discharge. This metric establishes an absolute limit, on an annual average daily basis, on the quantity of wastewater that can be treated by, and discharged from, the Expanded Wastewater Facility. Also as discussed above, once the two new underground injection wells are installed, the total design capacity of the four wells at the Expanded Wastewater Facility will be .998 MGD AADF. The two new injection wells are being added to ensure adequate disposal capacity for the .849 MGD permitted capacity and, importantly, to accommodate the peak hourly flow. The reclaimed water reuse system currently has an authorized design capacity of 1 MGD AADF, and this is not being changed by the Project, although the permitted capacity is being increased to .849 MGD AADF. As discussed in greater detail below, neither the design capacity nor the permitted capacity of the reuse system is a function of the irrigation application rate per acre of the golf course, and neither represent the amount of irrigation applied to the golf course per day. In determining the design capacity for the Expanded Wastewater Facility, Castle considered wastewater capacity demand for the facility through the year 2020, rather than over a 20- year period. This is because buildout of the properties on Stock Island that will contribute flow to the facility is reasonably projected to occur between 2018 and 2020. After buildout, there will be no additional properties being developed to contribute additional wastewater flows to the Expanded Wastewater Facility. The credible, persuasive evidence establishes that the proposed design capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62-600.200(19) and other pertinent provisions in chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence also establishes that the proposed permitted capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62- 600.200(62) and other pertinent provisions of chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence further establishes that the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. The credible, persuasive evidence also establishes that the underground injection wells, as designed, conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that there is reasonable assurance that the wells, when properly constructed, maintained, and operated, will discharge effluent in compliance with all pertinent statutes and rules, including the requirement that the effluent discharged down the injection wells meet AWT standards as of January 1, 2016. DEP Review and Proposed Issuance of the Permit at Issue The wastewater treatment facility and underground injection well applications for the Project were submitted to DEP on April 15, 2014. During DEP's review of the applications for the Project, the question arose whether the 1.273 MGD peak hourly flow stated in the permit application would trigger the so-called "deep well" requirement in section 403.086(10)(e)2. that the underground injection wells be cased to a minimum depth of 2,000 feet. DEP ultimately concluded that the term "design capacity," as used in the statute, referred to an average daily flow rate14/ over a specified period of time——here, a year——for the Expanded Wastewater Facility, rather than the transient peak hourly flow for the facility. Thus, the Expanded Wastewater Facility does not have a design capacity exceeding 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Expanded Wastewater Facility. DEP permit review staff issued one RAI, and KWRU timely provided the requested information. Upon receipt and review of KWRU's response to the RAI, DEP deemed the application for the Permit at Issue complete. DEP staff reviewed the permit applications for compliance with applicable statutory and rule requirements and standards. DEP's review does not entail re-designing or re- engineering the project or questioning the design engineer's reasonable exercise of judgment on design matters, as long as the project is accurately designed based on sound engineering principles and will operate in accordance with the applicable permitting requirements and standards. Thus, as a matter of practice, DEP relies, to a large extent, on the design engineer's certification that the system is accurately designed according to sound engineering principles——as is appropriate and authorized pursuant to the certification provisions on the application forms, rule 62-4.050(3), and chapter 471 and Florida Board of Engineering rules.15/ Gary Maier, P.E., professional engineer supervisor III and supervisor of DEP's domestic wastewater facility permit review staff, also reviewed the applications, the Intent to Issue, and the draft Permit at Issue to ensure that the Project complied with all applicable rules and standards and that KWRU had provided reasonable assurances such that the Project should be approved. Ultimately, DEP determined that KWRU provided reasonable assurances that the relevant permit applications met the applicable statutory and rule requirements and standards. Accordingly, DEP issued a Notice of Intent to issue the Permit at Issue. Establishment of Prima Facie Entitlement to Permit at Issue The relevant portions of the permit file, including the permit applications, supporting information, and Notice of Intent to Issue for the Permit at Issue, were admitted into evidence at the final hearing. With the admission of these documents into evidence, KWRU established its prima facie case demonstrating entitlement to the Permit at Issue. See § 120.569(2)(p), Fla. Stat. Challenge to the Permit at Issue Once KWRU demonstrated prima facie entitlement to the Permit at Issue, the burden shifted to Petitioners to present evidence proving their case in opposition to the Permit at Issue. See id. To prevail in this proceeding, Petitioners bear the ultimate burden of persuasion to prove their case by a preponderance of the competent substantial evidence. Petitioners have raised numerous grounds in the Second Amended Verified Petition for Formal Administrative Hearing16/ that they contend mandate denial of the Permit at Issue. Each of these grounds is addressed below. Alleged Permit Application Deficiencies Petitioners contend that the Permit at Issue should be denied due to alleged deficiencies in the applications submitted for the Project. Capacity Analysis Report Petitioners allege that, under rule 62-600.405, KWRU was required to submit a Capacity Analysis Report ("CAR") as part of its application for the Permit at Issue and that its failure to do so renders the applications incomplete, thus requiring denial of the Permit at Issue. The purpose of a CAR is to analyze capacity at an existing wastewater facility and to apprise DEP when it becomes evident that expansion of the wastewater facility may be needed. Specifically, the CAR is performed and submitted on a periodic basis, or when certain contingencies occur, to apprise DEP of the actual flows through the facility. If the actual flows are approaching the facility's permitted capacity, the CAR serves to notify DEP that expansion of the facility may be warranted. Thus, the CAR helps ensure that the permittee recognizes the need for, and properly plans for, future expansion of the facility. In support of their contention, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who has experience in the planning and design of wastewater treatment facilities in Florida, including the Florida Keys. Lynch testified that the most recent three-month average daily flows reported to the DEP by KWRU repeatedly exceeded 50 percent of the permitted capacity of the Existing Wastewater Facility, thereby triggering the requirement in rule 62-600.40517/ that a CAR be submitted. KWRU previously submitted an initial CAR when the Existing Wastewater Facility historically exceeded 50 percent of its permitted capacity. Thereafter, KWRU submitted an updated CAR in April 2012, as part of the renewal application for the Existing Permit that KWRU filed in October 2011. The April 2012 CAR indicated that permitted flows would not be exceeded for ten years. Thus, under rule 62-600.405(5), a subsequent updated CAR would be due at five year intervals or when the applicant applied for an operation permit or renewal of an operation permit, whichever occurred first.18/ The persuasive evidence establishes that during the period between issuance of the Existing Permit in February 2012 and submittal of the applications for the Permit at Issue in 2014, the three-month average daily flows for the Existing Facility had not exceeded 50 percent of the treatment plant's capacity and the five-year interval CAR submittal interval (which would have expired in 2017) had not yet expired, so an updated CAR was neither required nor submitted. When development on Stock Island resumed in the 2012 through 2014 timeframe following an economic recession, it became apparent from actual flow data that the Existing Wastewater Facility would need to be expanded to accommodate the wastewater flow from new development, as well as to accommodate wastewater flow from existing development being required by law to connect to a central wastewater system. Accordingly, in April 2014, KWRU submitted the applications for the Permit at Issue. As part of KWRU's applications, the design and permitted capacity of the Existing Wastewater Facility were analyzed, and future wastewater flows for the facility were projected, taking into account all relevant factors, including projected development over an appropriate planning period, new connections from existing development, and the lack of seasonal variation in historic flows. Based on this information, the proposed design and permitted capacities for the Expanded Wastewater Facility were determined. This information is precisely that which would have been required in an updated CAR. Because all pertinent information necessary to determine the design and permitted capacities for the Expanded Wastewater Facility was submitted as part of the applications for the Permit at Issue, a separate CAR was not required and, indeed, would have been redundant and pointless. It should be noted that the Permit at Issue specifically requires submittal of a CAR upon renewal, which is five years from the date of issuance. Further, the Expanded Wastewater Facility is subject to chapter 62-600, including rule 62-600.405, so KWRU would be required to submit a CAR if circumstances specified in the rule were to occur.19/ Thus, Petitioners failed to demonstrate, by a preponderance of the competent substantial evidence, that a CAR was required to be submitted as part of applications for the Permit at Issue. Accordingly, the absence of a CAR as part of the applications is not a basis for denying the Permit at Issue. Deep Injection Well Requirement Petitioners contend that the design capacity for KWRU's wells exceeds 1 MGD, so KWRU was required under section 403.086(10)(e)2. to apply for approval to install deep injection wells——i.e., wells that are cased to a minimum depth of 2,000 feet. Petitioners further contend that KWRU's failure to include an application for deep injection wells in its applications thus mandates denial of the Permit at Issue. Under section 403.086(10)(e)1., injection wells serving wastewater facilities that have a design capacity of less than 1 MGD are required to be at least 90 feet deep and cased to a minimum depth of 60 feet. Under section 403.086(1)(e)2., injection wells serving wastewater facilities having a design capacity equal to or greater than 1 MGD must be cased to a minimum depth of 2,000 feet or such greater depth as may be required by DEP rule. As previously discussed, rule 62-600.200(19) defines "design capacity" as "the average daily flow projected for the design year which serves as the basis for the sizing and design of the wastewater facilities." The rule states that the design capacity is established by the permit applicant, and that the timeframe associated with the design capacity——such as annual average daily flow, maximum monthly average daily flow, or three- month average daily flow——also is specified by the applicant. Additionally, rule 62-600.400(3)(a), which is part of DEP's Design Requirements rule for domestic wastewater facilities, reiterates that the applicant establishes both the design capacity and the timeframe used to define its selected design capacity, with the caveat that the timeframe selected must reflect seasonal variations in flow, if any. As discussed above, the credible, persuasive evidence establishes that KWRU's selected design capacity and timeframe ——here, .849 MGD AADF——accurately and appropriately addresses the projected wastewater flows that will be treated by the Expanded Wastewater Facility. As Castle credibly testified, historical flows to the Existing Wastewater Facility do not indicate substantial seasonal residential flow, consistent with the workforce population residing year-round on Stock Island. Moreover, to the extent there may be some seasonal flow variation associated with projected hotel and commercial development, Castle took that into account in determining the design capacity for the Expanded Wastewater Facility. For these reasons, Castle's selection of AADF as the design capacity metric is appropriate, conforms to sound engineering principles, and complies with applicable DEP rules. Further, as previously discussed, the 1.273 MGD peak hourly flow is exactly that——the peak or maximum flow expressed on an hourly basis——that can be processed by the Expanded Wastewater Facility. It does not constitute the design capacity of the Expanded Wastewater Facility, which, by definition, is the average flow over a specified period of time. The persuasive evidence in the record shows that the proposed design capacity of the Expanded Wastewater Facility is .849 MGD AADF, and this design capacity is appropriate and based on sound engineering principles. As such, the design capacity of the facility is less than 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Project. Thus, Petitioners failed to demonstrate, by a preponderance of the evidence, that the deep well requirement in section 403.086(10)(e)2. applies to the Project. Accordingly, they did not establish that the Permit at Issue should be denied on the basis that KWRU did not apply for approval of deep injection wells as part of the applications for the Project. Identity of Permittee The Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, which is not an existing entity registered to do business in Florida or in any other state. Petitioners contend, and KWRU and DEP do not dispute, that a permit issued to an entity that does not legally exist cannot legally authorize any activities. Accordingly, to the extent the Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, Petitioners contend that this constitutes a basis for denying the Permit at Issue. At the hearing, DEP and KWRU presented credible evidence showing that the correct permittee is KW Resort Utilities Corp., not Key West Resort Utilities Corporation as was stated on the proposed Permit at Issue. Further, the permit applications correctly identify KWRU as the applicant for the Permit at Issue. Thus, identification of Key West Resort Utilities Corporation as the permittee on the proposed Permit at Issue was a typographical error, and the evidence establishes that this error will be corrected when the Permit at Issue is issued. If this typographical error is corrected, then the Permit at Issue should not be denied on this basis. Alleged Project Design and Engineering Deficiencies Petitioners allege that KWRU failed to provide reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the Expanded Wastewater Facility will not discharge or cause pollution in contravention of chapter 403 and applicable DEP rules. Petitioners further allege that KWRU has undersized the design capacity of the Expanded Wastewater Facility and that the appropriate design capacity is greater than 1 MGD, thus triggering the deep well requirement in section 403.086(10)(e)2. Projected Flows to Expanded Wastewater Facility In support of their position, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who testified that the future wastewater flows to the Expanded Wastewater Facility projected by KWRU in its applications are incorrect because they do not accurately address planned development in KWRU's service area, as required by the Ten States Standards. Lynch took the position that pursuant to the Ten States Standards, the appropriate planning horizon for the Project is at least ten years, which would require KWRU to project wastewater flow to the Expanded Wastewater Facility through approximately 2025, rather than through 2020, as projected in the applications for the Project. However, the persuasive evidence shows that KWRU utilized an appropriate planning horizon in projecting future wastewater flows to the Expanded Wastewater Facility. KWRU's facility design engineer, Castle testified, persuasively, that although the graphic submitted in the application shows the projected wastewater flows only through the year 2020, the planning horizon he used actually was infinite. This is because the projected buildout of the service area20/ to maximum wastewater flow is anticipated to occur between 2018 and 2020, and after that point, wastewater flows to the facility would remain constant. Thus, it was pointless to depict projected flows out to the year 2025——particularly since the narrative in the application describing the Project makes clear that buildout of KWRU's service area is anticipated to occur by 2020. Because the wastewater flows projected for the year 2020 accurately represent the maximum flows that the Expanded Wastewater Facility can process, the projected planning horizon to the year 2020 is appropriate for the facility, complies with the Ten States Standards, and complies with DEP rules. Lynch also asserted that the projected wastewater flows to the Expanded Wastewater Facility from development identified in the application do not accurately apply the standards in DOH Table I and that this inaccuracy further contributed to underestimation of the design capacity of the Expanded Wastewater Facility. Lynch arrived at this position by applying Table I to all identified future development——both residential and nonresidential——and considering an additional development (Key West Harbor Yacht Club) not listed in the applications. He projected that the future wastewater flow from these developments would be approximately 146,110 gallons per day——approximately 46,000 gallons per day higher than the 100,000 gallons per day that Lynch claimed KWRU projected for the planned developments on Stock Island. Based on the addition of 46,000 gallons to KWRU's proposed design capacity of .849 MGD, Lynch opined that .895 MGD is the design capacity that should have been proposed for the Expanded Wastewater Facility. However, the credible, persuasive evidence establishes that, in determining the design capacity of .849 MGD for the Expanded Wastewater Facility, Castle accurately projected the wastewater flow quantities from future development on Stock Island. Castle described in detail the process he undertook to determine the projected wastewater flows from the various land uses and locations on Stock Island through projected buildout between 2018 and 2020. Specifically, he identified planned nonresidential development on Stock Island expected to begin producing wastewater flows in 2014 and applied the DOH Table I standards to determine the projected flows for each development. To determine projected wastewater flow from future residential development on Stock Island, Castle identified approximately 40 acres of scarified or under-utilized property in KWRU's service area and applied a density of 12 equivalent dwelling units ("EDU") per acre,21/ with 167 gallons per day of wastewater flow attributable to each EDU, using actual historic wastewater flow data from the Master Plan. Additionally, for each scarified or under-utilized property having water frontage, he projected one boat slip per 35 feet of frontage and applied a 75-gallon-per-day flow for each boat slip using DOH Table I recreational vehicle flows. For years 2016 through 2019, Castle projected incremental increases in wastewater flows per year22/ to account for potential development of other currently occupied properties. The aggregate of all projected flows from the identified developments, the 40 acres and boat slips, and the incremental increases per year through buildout yielded a projected wastewater flow of .74 MGD to the Expanded Wastewater Facility by years 2018 through 2020, which represents buildout flow to the facility. Castle then added a "safety factor" of 15 percent to the projected .74 MGD wastewater flow to accommodate currently unknown future redevelopment of existing occupied properties, to reach the .849 MGD design capacity. The 46,000-gallon discrepancy between Lynch's .895 MGD design capacity calculation and Castle's .849 MGD design capacity calculation is attributable to four basic differences in how they each determined design capacity. First, Lynch used more recent development agreement and development order information that more precisely identified and quantified specific land uses than the information that KWRU had available to it at the time it prepared and submitted its application. However, the evidence did not establish that the flow information on which Lynch relied and that on which Castle relied were so appreciably different as to significantly affect the projected design capacity for the Expanded Wastewater Facility. Second, Lynch applied DOH Table I to project future wastewater flows from all future planned development on Stock Island, both residential and nonresidential, whereas Castle applied DOH Table I only to determine nonresidential development future flows, and used actual historic flow data from the Master Plan to determine residential development future flows. Castle's residential flow calculation using historical actual flow data conforms to the recommendation in section 11.242(a) of the Ten States Standards that actual flow data be used, to the extent possible, to predict future flows; thus, Castle's calculation likely more precisely projects future flow attributable to residential development on Stock Island.23/ Third, Lynch took into account the Key West Harbor Yacht Club flow into the Expanded Wastewater Facility, whereas KWRU did not consider this flow in projecting future flows to the facility. This omission constituted an oversight on KWRU's part, and the flow from this development should have been included in the wastewater flow projection for the facility. However, the persuasive evidence did not show that this omission constituted a significant error in KWRU's .849 MGD AADF design capacity projection.24/ Fourth, Lynch apparently misinterpreted a statement in the application referencing "such redevelopment" as referring to the known planned developments on Stock Island, which were specifically identified by name in the application, and, thus, interpreted the reference to 100,000 gallons as being the flow KWRU projected for those known, named developments. However, the persuasive evidence established that the 100,000 gallons that KWRU assigned to "such redevelopment" in its application referred not to the known, named developments identified in the application, but instead to presently unknown future development on Stock Island, which Castle took into account by including the 15 percent "safety factor" in determining design capacity. Pursuant to the foregoing, it is determined that KWRU demonstrated, by credible, persuasive evidence, that it accurately estimated future wastewater flows from projected development on Stock Island to determine an appropriate design capacity of .849 MGD AADF for the Expanded Wastewater Facility. Design Capacity Timeframe Petitioners allege that the timeframe associated with the design capacity specified by KWRU——the annual average daily flow, or AADF——is not appropriate for the Expanded Wastewater Facility because it fails to reflect seasonal flows to the facility as required by rules 62-600.200(16) and 62-600.400(3)(a). Petitioners assert that the design capacity for the facility should instead be expressed in maximum monthly average daily flow ("MMADF") to account for seasonal flows. In support, Petitioners presented the testimony of Lynch, who opined that the KWRU service area experiences seasonal flows driven by the influx of tourists to Stock Island during tourist season. Lynch based this opinion on the wastewater flow data for the Existing Wastewater Facility for the year 2014, and his calculations showing that the three-month average daily flow ("ADF") for October through December 2014 was 11 percent higher than the AADF and that the MMADF for that period was 16 percent higher than the AADF. Lynch considered this variation substantial enough to indicate seasonality, so that MMADF is the appropriate design capacity timeframe for the Expanded Wastewater Facility. Using MMADF as the design capacity timeframe, Lynch opined that the design capacity of the Expanded Wastewater Facility should be 1.04 MGD MMADF——which would trigger the deep well requirement in section 403.086(10)(e)2. Castle chose AADF as the timeframe for the Expanded Wastewater Facility design capacity because historical flow records over a period of years do not show significant seasonal variations in flow for Stock Island. Castle testified, credibly and persuasively, that while the historical flow data shows a consistent slight increase in flows from August to December, in his view, the variation is not significant enough to constitute a seasonal flow. This is consistent with the evidence establishing that Stock Island is a "bedroom community" having a mostly year- round workforce population. Lynch formulated his opinion regarding appropriate design capacity using 2014 flow data for the entire year, which was not available at the time KWRU filed its permit applications for the Project in April 2014. Although Lynch relied on more recent data, his opinion was based only on one year of data. By contrast, Castle selected AADF as the design capacity metric based on the previous five years of flow data, which showed variations in flow ranging between two percent and 12 percent on a three-month average daily flow basis. Castle credibly testified that these variations were not significant enough to indicate seasonal flows and did not closely correlate with tourist season in the Keys. Additionally, in calculating his flow projections for the Expanded Wastewater Facility, Castle assumed 100 percent year-round occupancy for residential units, so that his projected design capacity of .849 MGD necessarily took into account potential seasonal flows. Thus, to the extent there are seasonal flows, the facility simply will receive flows below the design capacity during off-season. The undersigned finds Castle's use of long-term historical flow data more reliable than Lynch's use of only one year of data in assessing whether there is flow seasonality.25/ DEP's wastewater permitting supervisor, Gary Maier, concurred that the variations in wastewater flow do not reflect a significant seasonal variation that would require the use of a smaller averaging period than AADF. Maier also observed that none of the wastewater facilities in the Florida Keys having a design capacity greater than 100,000 gallons per day has a design capacity based on MMADF. This evidences that Castle's selection of AADF as the timeframe metric conforms to the design capacity standard used for facilities of comparable size in the Florida Keys. Based on the foregoing, it is determined that KWRU's selection of AADF as the design capacity timeframe metric for the Expanded Wastewater Facility is appropriate and complies with DEP rules. Petitioners failed to demonstrate that KWRU's selection of AADF as the design capacity timeframe metric violates any applicable laws or rules. Accordingly, Petitioners did not demonstrate that the Permit at Issue should be denied on this basis. Ability of Expanded Wastewater Facility to Reliably Meet AWT Petitioners further allege that KWRU failed to provide a complete application demonstrating that the treatment processes for the Expanded Wastewater Facility will efficiently and reliably meet effluent limitations for design year flow. As discussed above, the evidence establishes that KWRU provided all of the information required for the applications for the Permit at Issue, so DEP correctly determined that the applications were complete before commencing its substantive review of the applications. Also as discussed above, Lynch opined that the proposed design capacity was undersized for the flows he projected for the Expanded Wastewater Facility. However, the persuasive evidence shows that KWRU's proposed design capacity of .849 MGD AADF is appropriate, conforms to sound engineering principles, and meets applicable statutory and rule requirements. In order to ensure that a wastewater facility functions effectively and reliably, it is important that the facility not be substantially oversized for the amount of wastewater flowing into the facility. In an over-sized facility, inconsistent timing of wastewater flow, lack of appropriate chemical environment for waste breakdown, and inadequate food supply for the microorganisms may lead to ineffective performance of the facility. A consequence of these imbalances is that undesirable microbes may populate the facility, causing incomplete solids settlement, overflow of solids downstream to the filters, and operational problems resulting in failure of the facility to treat wastewater to AWT standards. KWRU provided reasonable assurance, based on the proposed .849 MGD AADF design capacity and the other engineering features of the Project, that the Expanded Wastewater Facility is appropriately sized and will effectively and reliably treat the wastewater to AWT standards. Thus, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it is undersized and will not reliably meet AWT standards. Key West Golf Club Reuse System Issues Petitioners contend that as part of the applications for the Project, KWRU proposes to send 1 MGD of reclaimed water to the golf course. Petitioners claim that, given an irrigated area of 100.27 acres and an average irrigation rate of .73 inches per acre per day, only 300,000 gallons of reclaimed water per day is accounted for by reuse as irrigation. On that basis, Petitioners allege that KWRU has not demonstrated that the 700,000 gallon-per-day balance of reclaimed water sent to the golf course will be reused for a beneficial purpose rather than being disposed. This contention is based on a misunderstanding of the structure and function of the reuse system. The 1 MGD flow stated in the permit application is the design capacity of the reuse system, which is not being changed by the Permit at Issue. Importantly, this figure does not quantify the amount of water that is or actually will be sent to the golf course or applied as irrigation to the golf course irrigated area in a single day. Rather, it represents the flow capacity to which the reuse system is designed.26/ The applications for the Permit at Issue do not propose any changes to the quantity of reclaimed water being reused, which is governed by the irrigated acreage at the golf course and the irrigation rate. These parameters are not being changed. As previously discussed, KWRU sends reclaimed water to the golf course only on an as-needed basis, where it is stored in the ponds until needed for irrigation. If the course does not need reclaimed water sent to the ponds, KWRU does not send the water. Thus, the golf course controls the amount of reclaimed water that is sent to the storage ponds. Although the permitted capacity of the reuse system is being expanded from .499 MGD AADF to .849 MGD AADF, the actual amount of reclaimed water sent to the golf course by KWRU is not anticipated to change because, as discussed above, the amount being reused for irrigation is not being changed. Since the amount of reclaimed water being reused for irrigation is not increasing, the reuse system is not being expanded. Thus, the evidence does not show that 700,000 gallons per day of reclaimed water will be sent to the golf course for disposal, inconsistent with rule 62-610.810(2), rather than being reused for a beneficial purpose.27/ Petitioners also assert that the increased permitted capacity of the reuse system constitutes a "new or expanded reuse or land application project," so that an engineering report and reuse feasibility study were required as part of the applications for the Permit at Issue, pursuant to rule 62-610.310(1). KWRU previously provided these documents when it originally applied for authorization of the reuse system. The credible, persuasive evidence shows that increasing the permitted capacity of the reuse system does not trigger the requirement to submit another engineering report or reuse feasibility study. This is because no changes to the structural components or operation of the reuse system facilities are proposed. As Castle credibly explained, and Maier confirmed, the relevant question in determining whether an engineering report is required is whether the land application rate and/or the irrigated acreage is being changed, which would increase the amount of reclaimed water being reused and, thus, would require expansion of the reuse system. As discussed, neither the irrigated area nor the irrigation application rate is proposed to change under the Project. Thus, neither an engineering report nor a reuse feasibility study are required as part of the applications for the Permit at Issue. Therefore, Petitioners failed to demonstrate that the Permit at Issue should be denied on the basis that KWRU did not submit a reuse feasibility or engineering report as part of its applications for the Permit at Issue. Alleged Surface Water Quality Violations by Injection Wells Petitioners allege that disposing of the effluent from the Expanded Wastewater Facility through the injection wells will cause or contribute to violations of surface water quality standards codified in chapter 62-302. Petitioners further allege that, as a consequence, the discharge will violate antidegradation requirements in rules 62- 4.242, 62-302.300, and 62-302.700(1), and that the wells do not comply with the underground injection control rule requirement in rule 62-528.630(7), specific to Monroe County, that the wells not cause or contribute to surface water quality violations. Regulatory Status of Surface Waters in Stock Island Vicinity A significant portion of the surface waters in the Florida Keys, including those surrounding Stock Island and Key West, are classified as Class III surface waters pursuant to rule 62-302.400. Water quality criteria adopted by rule for Class III surface waters are established to protect fish consumption, recreation, and the propagation of a healthy, well- balanced population of fish and wildlife. As previously noted, certain portions of the Florida Keys, including the surface waters surrounding Stock Island and Key West, are designated an OFW. Fla. Admin. Code R. 62- 302.700(9)(i)13. No degradation of surface water quality, other than that allowed under rules 62-4.242(2) and (3), is permitted in an OFW. See Fla. Admin. Code R. 62-302.700(1). The narrative nutrient criterion codified at rule 62- 302.530(47)(a) states: "[t]he discharge of nutrients shall be limited as needed to prevent violations of other standards contained in this chapter. Man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of Rules 62-302.300, 62-302.700, and 62-4.242, F.A.C." The narrative nutrient criterion codified at rule 62-302.530(47)(b) states: "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." These criteria apply in Class III surface waters, including the surface waters in and around the Florida Keys. See Fla. Admin. Code R. 62-302.531(1). Rule 62-302.531(2) requires DEP to numerically interpret the narrative nutrient criterion for nutrients (nitrogen and phosphorus) and for nutrient response (chlorophyll- a). Where a site-specific numeric interpretation of rule 62- 302.530(47)(b) has been established, that numeric interpretation constitutes the primary standard applicable to that site. Fla. Admin. Code R. 62-302.531(2)(a). A range of natural factors affect nutrient loading for a given waterbody. Therefore, site- specific numeric interpretations of the narrative nutrient criteria generally are deemed more reliable than broadly applicable, non-site specific criteria. Estuary-specific numeric interpretations of the narrative nutrient criterion in rule 62-302.530(47)(b), consisting of nutrient values for nitrogen and phosphorus and a nutrient response value for chlorophyll-a have been adopted for many areas in the state of Florida, including the Florida Keys. These numeric interpretations——commonly referred to as "numeric nutrient criteria," or "NNCs"——are open water, area-wide averages. See Fla. Admin. Code R. 62-302.532(1). For the Florida Keys, seven Florida Keys Marine Nutrient Regions ("FKMNRs") have been identified and geographically delineated on a series of maps adopted by rule. For each of these FKMNRs, NNCs have been adopted for nitrogen, phosphorus, and chlorophyll-a. Fla. Admin. Code R. 62- 302.532(1)(g). The NNCs for the Lower Keys Region and the Back Bay Region are germane to this proceeding. For the Bay Back Region, the NNCs are .009 mg/L for phosphorus, .25 mg/L for nitrogen, and .3 µg/L for chlorophyll-a. For the Lower Keys Region, the NNCs are .008 mg/L for phosphorus, 0.21 mg/L for nitrogen, and 0.3 µg/L for chlorophyll-a. These NNCs are expressed as annual geometric means that are not to be exceeded more than once in a three-year period.28/ The area of water extending from the shoreline out to 500 meters offshore in the Florida Keys is referred to as the "Halo Zone." DEP has adopted by rule a map delineating the Halo Zone. The NNCs applicable to surface waters in each of the FKMNRs currently do not apply to the surface waters in the Halo Zone. Thus, only the narrative nutrient criteria codified at rules 62-302.530(47)(a) and (b) apply to surface waters in the Halo Zone at this time.29/ Additionally, pursuant to chapter 62-303, the Impaired Waters Rule, DEP has identified and delineated spatial assessment areas in waterbodies based on homogeneity for multiple water quality parameters.30/ These assessment areas, called "Waterbody IDs" or "WBIDs," are delineated for purposes of assessing, through water quality sampling, whether the surface waters within the WBID are impaired——that is, whether they fail to meet one or more of the applicable water quality standards due to pollutants.31/ DEP has delineated several WBIDs, identified by number, in the Halo Zone surrounding Key West and Stock Island. The Halo Zone surrounding Stock Island comprises WBID 6014B, and the Halo Zone surrounding Key West consists of WBIDs 6014A and 8073A through 8073H.32/ The Back Bay Region, which is located north of Stock Island and outside of the Halo Zone, is designated as WBID 8074. The Lower Keys Region consists of WBID 8073, which is located northwest of Stock Island and surrounding Key West outside of the Halo Zone, and WBID 8079, which is located south of Stock Island outside of the Halo Zone. Water quality monitoring, consisting of sampling for a range of parameters, is conducted at monitoring stations within each of these WBIDs. At least one monitoring station is located within each WBID. This water quality sampling is conducted according to DEP's applicable standard operating procedures. The monitoring stations have collected nutrient and nutrient response data spanning a period of years. The data collected in 1995 through 2013 are pertinent to this proceeding.33/ The Keys RAP, which was prepared in 2008 and updated in 2011, prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. As authorized under rule 62-303.600, DEP determined that the Keys RAP provides reasonable assurance that the restoration goals for the surface waters in the Florida Keys will be achieved by ensuring that all management activities specified in the Keys RAP would be implemented for specified waterbodies by 2015. Accordingly, in February 2012, DEP approved and adopted the Keys RAP by Secretarial Order. Current and historic water quality data show that all WBIDs in the Keys, including those in the Lower Keys Region, Back Bay Region, and Halo Zone for the surface waters surrounding Key West and Stock Island, are not impaired for nutrients——that is, that the NNCs and narrative nutrient criteria, as applicable, are being met. Pursuant to sections 403.061 and 403.067, Florida Statutes, and rule 62-303.600, DEP has classified the Florida Keys WBIDs as Category 2 under the waterbody use attainment classification scheme34/ for nutrients and nutrient response. The classification of the Keys WBIDs in this category means that sufficient water quality data are available to determine that at least one designated use is attained. Thus, as authorized by section 403.067 and rule 62-303.600(2), DEP has placed the Keys WBIDs on the "Delist List."35/ This "de-listing" action recognizes that the Florida Keys WBIDs, including those in the Halo Zone, are not impaired for nutrients and chlorophyll-a. Subsurface Geology in Vicinity of Stock Island The parties agree that, as a general proposition, the ground water and surface waters are connected to each other in the Florida Keys. However, no evidence was presented showing a specific location or locations where ground water connects to surface waters. Although it generally is undisputed that, at some point, ground water connects to surface waters, the parties disagree regarding whether, where, and how long it may take for the injected effluent to reach surface waters. Petitioners contend that due to the local geology, the injected effluent from the Existing Wastewater Facility rapidly reaches surface waters in the vicinity of Stock Island and that the increased discharge through the new injection wells will exacerbate and cause or contribute to surface water quality violations in the immediate vicinity of Stock Island and offshore. In support of this position, Petitioners presented the testimony of Scott Zednek, a Florida-licensed P.G. Zednek opined that due to the absence of subsurface sediments that would prevent upward flow to surface waters, the buoyant freshwater effluent injected down the wells will rapidly vertically migrate through the highly transmissive Key Largo Limestone and Miami Limestone to reach surface waters. To develop his opinion, Zednek reviewed a Florida Geological Survey boring log ("FGS Log") approximately one-third mile from the Existing Wastewater Treatment Facility and a Universal Engineering Services geotechnical study boring log ("UES Log") performed on the KWRU site. The FGS Log was prepared specifically to analyze the subsurface geology. The UES Log was performed as part of a geotechnical study to analyze subsurface conditions onsite specifically for the purpose of determining the load-bearing capability of the KWRU site to support a concrete water tank. As such, the FGS Log provides a more precise view of the subsurface geology in the vicinity of the KWRU site.36/ Based on the UES Log, Zednek opined that there are no confining layers underlying the KWRU site. The UES Log for the site shows N-values, generated using an ASTM-designated process for determining the resistivity or strength of the subsurface, of between two and 43 for the first 60 feet of sediment below the surface. According to Zednek, an N-value of less than 50 indicates lack of a confining layer. Further, his review of the UES Log did not show the presence of Q-layers, which may function as semi-confining layers, or aquitards, that would substantially restrict the movement of fluid, including the injected effluent.37/ Based on the UES Log, Zednek opined that the limestone underlying the site is fractured, creating vertical pathways for the injected effluent to migrate upward to the surface. Zednek testified that the Key Largo Limestone, into which the effluent is injected, is very porous and highly transmissive, facilitating rapid migration once the effluent is injected. Based on his review of the FGS Log, Zednek testified that a Q-layer first appears at approximately 62 feet below the ground surface——below the depth of the injection wells' casing—— so it would not act as a confining layer for the injected effluent. Zednek further observed that this Q-layer is only 1.5 centimeters thick. In his experience, this thickness is not sufficient to create a confining or semi-confining layer. Zednek thus opined that the subsurface geology at the KWRU site will enable and facilitate vertical migration of the injected effluent to surface waters. Zednek also noted the proximity of the Safe Harbor channel cut. He opined that the injected effluent likely would horizontally migrate through the highly transmissive Key Largo Limestone,38/ then vertically migrate to surface waters through the "path of least resistance" at the Safe Harbor channel cut. As further support for his opinion, Zednek cited an interim report summarizing results of a subsurface dye tracer study performed for the Florida Keys Aqueduct Authority regional wastewater treatment facility. The study's purpose was to determine whether the subsurface geology at the Cudjoe Key location was sufficiently confining to prevent vertical migration of the injected effluent from shallow injection wells proposed at that facility. According to Zednek, the interim report showed that the subsurface at the injection site was not sufficiently confining to prevent the injected effluent from rapidly vertically migrating to surface waters. Petitioners also presented the testimony of John Paul, Ph.D., in support of their contention that the injected effluent from the Expanded Wastewater Facility would rapidly rise through the subsurface limestone up into surface waters. Dr. Paul testified regarding viral tracer studies he had conducted at Long Key, approximately 65 miles east-northeast of Stock Island, and at the Saddlebunch Keys, located approximately 20 miles east- northeast of Stock Island. In conducting these studies, Paul injected bacteriophage viruses into Class V wells and tracked their movement into surface waters. In the Long Key study, the injected viruses moved through the subsurface limestone to the south-southeast and appeared in surface waters in deep canals on the ocean side of U.S. 1 approximately 53 hours after injection. In the Saddlebunch Keys study, the viruses also appeared in surface waters some distance south-southeast of the location at which they were injected.39/ Paul acknowledged that when the viruses appeared in surface waters, they were detected at a concentration of one trillionth (.0000000000001 or 1 x 10-12) less than the concentration in which they had been injected, indicating significant dilution by ground water and/or surface waters. He also acknowledged that canals dredged to depths shallower than the injected depth may not facilitate rapid migration of the injected effluent to surface waters. In rebuttal, KWRU presented the testimony of Michael Alfieri, a Florida-licensed P.G. who specializes in hydrogeology. Alfieri examined the FGS Log and UES Log, and also reviewed the detailed lithology logs and photographs for the FGS Log. Based on his review of this information, Alfieri opined that the FGS Log indicates the presence of semi-confining layers that function as aquitards in the first 60 feet of subsurface sediment. Alfieri noted that the existence of an aquitard depends on the nature of the geologic materials present at that location, so that N-values do not perfectly correlate with the presence or absence of confining layers. Thus, a carbonate silt or clay having an N-value of only two may better function as an aquitard than a porous, transmissive limestone having an N-value of 50, and silts or clays having a thickness as little as one centimeter may function as an aquitard to significantly impede fluid flow.40/ Based on his review of the FGS Log and the detailed lithology log descriptions and photographs for the FGS Log, Alfieri observed four laminated calcrete zones, six Q-zones, and chalky limestone within the first 60 feet——all of which would function as aquitards to impede the vertical movement of the effluent.41/ Thus, according to Alfieri, the effluent is anticipated to migrate laterally from the injection wells below these confining layers before migrating through a vertical pathway to reach surface waters at an unknown location. To predict the likely migration pathway for the effluent, Alfieri conducted hydrological modeling using a simplistic SEAWAT computer model. He used horizontal and vertical transmissivity values for the subsurface strata derived from geological studies previously conducted in the Florida Keys. Although these studies indicate greater horizontal than vertical transmissivity, Alfieri assumed equal vertical and horizontal transmissivity for modeling purposes——necessarily yielding more conservative results than would be anticipated to occur in real life. Accordingly, the modeling results showed more rapid vertical migration than would be anticipated in real life when the Q-zones and calcrete layers depicted in the FGS Log are considered. Even with these conservative assumptions, the modeling results showed the injected effluent migrating horizontally at least a mile offshore42/ before migrating upward to surface waters. The persuasive evidence shows that the injected effluent will be confined to the subsurface and will travel laterally a substantial distance before rising to surface waters at some unknown location or locations offshore. Thus, the credible, persuasive evidence does not support the conclusion that the effluent will rapidly rise to the surface waters in the nearshore area in the vicinity of the KWRU site.43/ Narrative Nutrient Criteria Petitioners allege that the effluent injected down the wells into the ground water will reach surface waters, causing or contributing to a violation of the narrative nutrient criteria for surface waters codified in rules 62-302.530(47)(a) and (b).44/ In support, Petitioners presented the testimony of James Fourqurean, Ph.D., who has extensive experience in research on Florida Keys aquatic ecosystems in their healthy and imbalanced states. Dr. Fourqurean described these ecosystems in their healthy state and in their nutrient-enriched state. Florida Keys nearshore ecosystems normally are oligotrophic, which means they are nutrient-limited. Thus, they do not normally exhibit high chlorophyll-a levels and microalgae counts. When nutrient levels in the Florida Keys ecosystems increase——whether by increasing the concentration of nutrients in discharges or by increasing the volume of water containing nutrients——primary production, i.e., plant growth, increases. Seagrass communities are phosphorus-limited, so that when these communities are exposed to phosphorus-enriched water, the phosphorus is rapidly absorbed from the water column and is stored in the benthos.45/ This phosphorus capture initially leads to increased seagrass abundance, but as phosphorus enrichment continues, the community species composition rapidly shifts to favoring seaweed and microscopic algae, ultimately damaging or destroying the seagrass community. Coral reef communities similarly are nitrogen-limited. Thus, when coral reef communities are exposed to nitrogen- enriched water, they shift to algae-dominated communities——again, damaging or destroying the coral reef communities. Based on historical aerial photographs of the area surrounding Safe Harbor and his experience studying seagrasses in the Florida Keys, Fourqurean concluded that the natural seagrass populations in the entire Florida Keys National Marine Sanctuary area, which includes the Stock Island area, are experiencing ecological imbalance. On the basis of the water quality sampling he conducted in and around Safe Harbor, Fourqurean opined that the imbalance is the result of man-induced nutrient enrichment. However, he did not engage in field studies in and around Safe Harbor, so could not cite specific examples where seagrasses had been replaced by algal-dominated communities in that area. Fourqurean noted that human waste contains high concentrations of phosphorus and nitrogen. In his view, because the effluent from the Existing Wastewater Facility contains phosphorous, it necessarily constitutes a source of phosphorous in the surface waters in Safe Harbor, even though it is injected into ground water. However, he acknowledged the existence of numerous other sources of nitrogen and phosphorus in the Safe Harbor vicinity, including septic tanks, boat cleaning operations and pump outs, and storm water runoff. He further acknowledged that he did not know where or when effluent from the Existing Wastewater Facility (and, by extension, the Expanded Wastewater Facility) may reach surface waters. Fourqurean acknowledged that the Permit at Issue would authorize the injection of effluent treated to AWT standards into ground water, rather than directly to surface waters, and he further acknowledged that the total phosphorus and nitrogen loading from the Expanded Wastewater Facility would substantially decrease as a result of conversion to AWT, even though the volume of effluent discharged down the wells may as much as double. He remained concerned that the Expanded Wastewater Facility may contribute phosphorus——even in very small quantities——to surface waters, causing imbalance to seagrass communities. He also opined that when saline ground water and the fresher effluent mix, the resulting brackish solution would dissolve the calcium carbonate comprising the subsurface limestone, releasing stored phosphorus that would eventually reach surface waters and negatively affect nearshore seagrass communities, However, he acknowledged that depending on subsurface physical conditions and flow paths of the effluent, phosphorous, nitrogen, or both, may be completely removed prior to the effluent reaching surface waters. He further acknowledged that seagrass community health in the Florida Keys National Marine Sanctuary has improved in the last two years and that water quality also has improved, reversing a ten-year decline. This is consistent with replacement of onsite septic tanks by central wastewater treatment systems in the Florida Keys. On rebuttal, KWRU presented the testimony of William Precht, who has extensive experience with Florida Keys geology and aquatic communities. Precht confirmed the existence of numerous sources of significant nutrient enrichment in the Safe Harbor vicinity other than the Existing Wastewater Facility, and noted that these sources must be taken into account when analyzing nutrient enrichment in Safe Harbor. He testified that raw wastewater is particularly deleterious to benthic communities. Thus, connecting wastewater generators that currently use septic tanks to central wastewater treatment systems can significantly improve water quality. Precht observed that Fourqurean's single-day sampling in the Safe Harbor area provided information regarding variability in nutrient concentrations, but characterized Fourqurean's conclusion that the Existing Wastewater Facility was the source of the nutrients as "unscientific" because it was based on supposition rather than on testing. He opined that the limited data set gathered over a one-day period could not reliably identify the source of nutrient enrichment in Safe Harbor. Precht testified that flushing capability is a key influence on nutrient concentration in surface waters. The further from a natural marine environment that water quality testing is performed, the more likely water quality will be poor due to nutrient enrichment from land-based sources. Given the configuration of Safe Harbor, water quality would be poorest in the interior dead-end canals and would steadily improve as one moved into more open water and flushing increased, with the highest water quality in open waters outside the canal system. Precht opined that the presence of noxious benthic plant life in the Safe Harbor vicinity may be attributable the destruction of seagrass communities in the area by historical dredging, rather than due to nutrient enrichment. Based on the reduction in total nitrogen and total phosphorus loading as a result of implementing AWT, Precht opined that the proposed discharge will not negatively affect the biological communities in the Safe Harbor vicinity. He further opined that due to the rapid uptake of phosphorus in the marine environment and due to denitrification that occurs in ground water and in marine surface waters, there is little chance that any nutrient loading that may result from the injected effluent would cause damage to the coral reef environment. Also on rebuttal, Alfieri persuasively testified that although phosphate release does occur when freshwater is injected into limestone that formed in a saline environment, this process gradually occurs over "geologic time"——that is, over millions of years. Therefore, he did not anticipate a significant release of phosphate from the subsurface limestone as a result of the effluent discharge. Also, limestone rapidly absorbs phosphorous, so phosphorus in the injected effluent would be absorbed quickly by the subsurface limestone.46/ Further, in any event, the effluent will be diluted by at least seven orders of magnitude——that is, one hundred millionth (.00000001)——of the injected concentration by the ground water, and/or by surface waters (assuming the effluent eventually reaches surface waters). As discussed above, the Keys RAP was prepared in 2008 and updated in 2011. The Keys RAP prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. Pursuant to the Impaired Waters Rule and DEP's adoption of the Keys RAP, activities that are consistent with the Keys RAP are considered to provide reasonable assurance that the narrative nutrient criterion in rule 62-302.530(47)(b) will be met. As discussed above, the Project will expand a centralized wastewater treatment plant that will accept, and treat to AWT standards, wastewater generated by development on Stock Island——including development that currently relies on onsite septic tanks for wastewater disposal. The Project is consistent with the Keys RAP, so there is reasonable assurance that the Project will meet the narrative nutrient criterion in rule 62-302.530(47)(b). The persuasive evidence shows that the Project will not cause or contribute to alterations of nutrient concentrations in water bodies so as to cause an imbalance in natural populations of aquatic flora or fauna. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the narrative nutrient criterion in rule 62-302.530(47)(b). Further, for the reasons discussed below, it also is determined that the Project will not violate the narrative nutrient criterion codified at rule 62-302.530(47)(a). Numeric Nutrient Criteria Petitioners also allege that the effluent will cause or contribute to violation of the estuary-specific numeric interpretations of the narrative nutrient criteria for the Back Bay nutrient region, codified at rule 62-302.532(1)(g)1., and the Lower Keys nutrient region, codified at rule 62-302.532(1)(g)3. In support, Petitioners cite the results of surface water sampling performed by Fourqurean in the Safe Harbor area showing high levels of nitrogen, phosphorus, and chlorophyll-a. Petitioners contend that these high nutrient levels evidence that the existing injection wells already are causing or contributing to surface water quality violations in the waters surrounding Stock Island, and that the increased effluent discharge from the proposed new injection wells will exacerbate this situation, further causing or contributing to violations of surface water quality standards. In preparing his opinion regarding the effect of the proposed injection wells on surface water quality, Fourqurean sampled surface water quality on one day at nine stations located in the vicinity of Stock Island, ranging from shallow waters inside the Safe Harbor basin to deeper waters offshore. Samples were collected at the surface and at a depth of one meter below the surface following the standard operating procedures for water quality sampling established by the Florida Keys Water Quality Protection Program. Fourqurean testified that the samples collected at the stations inside the Safe Harbor basin and near the shore of Stock Island showed very high levels of chlorophyll-a, evidencing that these areas are dominated by microalgae and, thus, are eutrophic. Additionally, the samples collected inside the Safe Harbor basin exhibited very high phosphorus concentrations—— almost three times greater than the estuary-specific numeric nutrient criterion for phosphorus. Phosphorus concentrations correspondingly decreased as samples were collected outside of the basin and offshore. Nitrogen concentrations followed a similar pattern in the sampling that Fourqurean conducted inside and outside of the Safe Harbor basin. According to Fourqurean, the high nutrient concentrations in the samples taken in Safe Harbor, when compared to the lower concentrations in samples taken outside of Safe Harbor, evidence the existence of a large source of phosphorous and nitrogen in Safe Harbor——in his view, the Existing Wastewater Facility. However, Fourqurean acknowledged that there are many potential nutrient enrichment sources on Stock Island, including fishing operations, boat sewage pump-outs, and direct discharges of storm water to surface waters. He further acknowledged that the specific source of phosphorus and nitrogen in the surface waters surrounding Stock Island cannot be identified. He did not opine as to the relative amounts of nutrients in surface waters that he believes are being contributed by the Existing Wastewater Facility or that will be contributed by the Expanded Wastewater Facility, as compared to other nutrient sources in the Safe Harbor area. He also acknowledged that a scientifically-valid water quality study would require more than a single day of sampling.47/ Kenneth Weaver, environmental administrator for DEP's Standards Development Section,48/ credibly and persuasively testified, and the water quality data for nutrients and chlorophyll-a collected in the WBIDs surrounding Key West and Stock Island show, that the surface waters in these WBIDs meet the applicable NNCs.49/ Historical water quality data also show that since 2008, the surface waters in these WBIDs continuously have met the baseline concentrations on which the NNCs were established and adopted. Even with the increased volume of wastewater treated by the Expanded Wastewater Facility, implementation of the AWT standard by the facility's wastewater treatment trains will substantially reduce the amount of total nitrogen and total phosphorus discharged into ground water through the injection wells. Specifically, for total nitrogen, the concentration will be reduced from 13.92 mg/L to 2.25 mg/L, and the total amount of nitrogen loading will be reduced from 58 to 15.9 pounds per day, representing a total net reduction of 72.4 percent in the discharge of total nitrogen. For total phosphorus, the concentration will be reduced from 3.47 mg/L to .75 mg/L, and the total amount of phosphorus loading will be reduced from 14.4 to 5.3 pounds per day, representing a total net reduction of 63.3 percent in the discharge of total phosphorus.50/ Weaver addressed the effects of these projected nutrient discharge concentrations on the surface waters in WBIDs 8074 and 8079, which comprise the portions of the Lower Keys Region and Back Bay Region closest to the KWRU site. He opined that, because these regions are currently meeting the applicable NNCs for nitrogen and phosphorus, and because KWRU's implementation of AWT will result in substantial reduction of total nitrogen and phosphorus loading, the NNCs will continue to be met in these regions——even in a "worst-case" scenario that assumes all of the treated effluent from the Expanded Wastewater Facility is disposed of through the injection wells and reaches the surface. The persuasive evidence shows that the Project will not cause or contribute to violations of the applicable numeric nutrient criteria. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the applicable numeric nutrient criteria in rule 62-302.532(1)(g)1. and 3. Surface Water "Free-From" Standards Petitioners allege that the effluent contains iron and copper above detection limits, as well as personal care products and pharmaceuticals, and that these constituents violate rules 62-302.500(1)(a)5. and 62-302.530(61). Rule 62- 302.500(1)(a)5. requires all surface waters of the state to be free from domestic, industrial, agricultural, or other man- induced non-thermal components of discharges which, alone or in combination with other components of discharges (whether thermal or non-thermal), are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species, unless specific standards for such components are established by rule. Rule 62-302.530(61) effectively requires surface waters to be free from substances in concentrations which injure, are chronically toxic to, or produce adverse physiological or behavioral response in humans, animals, or plants. These rules collectively comprise the "free-from" standards for surface waters. Petitioners presented no evidence to substantiate the allegation that the effluent from the Expanded Wastewater Facility will contain pharmaceuticals or personal care products. However, even assuming these constituents were present in the effluent, Petitioners did not present evidence showing that they are carcinogenic; mutagenic; or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species; or that they are injurious or chronically toxic to, or produce adverse physiological or behavioral response, in humans, animals, or plants. Petitioners did not present evidence showing that the effluent contains copper and iron in quantities that violate any applicable surface water quality standards, including the surface water "free-from" standards. Paul testified, based on sampling he conducted at domestic wastewater outfalls discharging directly to surface waters, that effluent treated to AWT standards often contains pathogenic bacteria and viruses that constitute threats to human health. On this basis, he opined that even though the effluent from the Expanded Wastewater Facility is treated to AWT, it may contain pathogenic constituents that are harmful to human health. However, as previously discussed, the evidence shows that the effluent discharged through KWRU's injection wells will be substantially diluted by groundwater, and also by surface waters to the extent it reaches surface waters at some unknown location. Accordingly, the results of Paul's pathogen studies cannot be extrapolated to conclude that KWRU's effluent also will contain pathogenic bacteria and viruses in such amounts as to constitute a threat to human health. Petitioners failed to show that the effluent disposed of in the injection wells will cause or contribute to violations of the surface water quality standards in rules 62- 302.500(1)(a)5. and 62-302.530(61). Dilution to Meet Surface Water Quality Standards Petitioners allege that KWRU is relying on dilution of the effluent in order to meet surface water quality standards without having been permitted for a mixing zone, in violation of rule 62-302.500(1)(c).51/ This contention lacks merit. As discussed in detail above, the credible, persuasive evidence establishes that the effluent discharged through the injection wells will not violate water quality standards for and parameters, including for nutrients, and will not cause or contribute to the violation of water quality standards. The credible, persuasive evidence establishes that once injected, the effluent will horizontally migrate a considerable distance before it may migrate vertically to reach surface waters. The parties generally agree that ground water and surface waters are "connected" in the Florida Keys. To that point, although it appears likely that at some point the effluent will reach surface water, the evidence does not establish that is an absolute certainty. Nonetheless, even assuming the effluent would reach surface waters at some unknown location and time, the persuasive evidence shows that it would be so substantially diluted by the ground water that it would neither cause nor contribute to violations of surface water quality standards. Further, the persuasive evidence, consisting of Weaver's "worst case" analysis of nutrient loading from the effluent discharge, which assumed no dilution by ground water, establishes that even if the effluent——which will be treated to AWT standards——were discharged directly into surface waters, it would meet the applicable nutrient criteria. Finally, Petitioners' claim assumes that the effluent will be discharged into surface waters. However, as discussed above and in greater detail below, to the extent the effluent ultimately may be discharged to surface waters, such discharge would be indirect, so would not be subject to statutory and rule provisions requiring establishment of a mixing zone. For these reasons, Petitioners failed to prove that KWRU violated any applicable law or rule by not requesting and obtaining a mixing zone for the discharge of the effluent through the injection wells. Class V Injection Wells in Monroe County Petitioners also allege that issuance of the Permit at Issue violates rule 62-528.630(7), which requires all Class V Group 3 domestic wastewater injection wells in Monroe County to provide reasonable assurance that operation of the well will not cause or contribute to a violation of surface waters standards as defined in chapter 62-302. As discussed above, the credible, persuasive evidence establishes that the operation of the wells as authorized under the Permit at Issue will not cause or contribute to violations of surface water quality standards codified in chapter 62-302. Accordingly, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it violates rule 62-528.630(7). Antidegradation Petitioners contend that the Permit at Issue must be denied because KWRU failed to provide reasonable assurance that the injection of effluent will not violate the antidegradation requirements applicable to surface waters codified at rules 62- 4.242, 62-302.300, 62-302.530(47)(a), and 62-302.700(1). This contention lacks merit. As more fully discussed below, the antidegradation requirements in these rules apply only to a direct discharge to surface waters, which is not present in this case. Here, the evidence clearly establishes that the injection wells do not directly discharge effluent into surface waters. It is undisputed that the effluent will be injected from the wells into Class III ground water, where it will migrate through the subsurface strata. Although it is likely that, due to a "connection" between ground water and surface waters, the effluent ultimately will reach surface waters at some unknown location or locations at some unknown time, this constitutes an indirect discharge, which is specifically excluded from the term "discharge of a pollutant." Fla. Admin. Code R. 62-620.200(13). However, even if the antidegradation rules did apply to the discharge of the effluent through the injection wells, Petitioners failed to prove that the discharge would degrade surface waters. As discussed above, the credible, persuasive evidence establishes that the surface waters in the Florida Keys, including those in and around Stock Island and Key West, currently meet the narrative and/or nutrient criteria, as applicable, and that effluent discharged through the injection wells will be treated to AWT standards, substantially reducing the facility's total nutrient loading below current levels. Thus, the credible, persuasive evidence established that, even in a "worst-case" scenario, which assumes no dilution of the effluent by ground or surface waters, the effluent still would not cause or contribute to a violation of the narrative or numeric nutrient criteria. As discussed above, the credible, persuasive evidence showed that, in fact, the effluent will be very substantially diluted by the ground water into which it is injected, and will be further diluted if and when it ultimately reaches surface waters. For these reasons, Petitioners failed to prove that KWRU did not provide reasonable assurance that the disposal of the effluent through the injection wells would not degrade surface waters, in violation of rules 62-4.242, 62-302.300, 62- 302.530(47)(a), and 62-302.700(1). Alleged Violation of Ground Water Standards Petitioners allege that KWRU did not provide reasonable assurance that the injection wells would not violate applicable ground water standards. Petitioners further allege that there is an underground drinking water source under Stock Island. In that case, more stringent ground water quality and injection well rule standards would apply to operation of the injection wells. Petitioners did not present any credible, persuasive evidence to support these allegations. The persuasive evidence establishes that although there is a fresh water lens under Stock Island, it is not classified as an underground source of drinking water52/ due to its substantial variability in horizontal and vertical extent, which renders the salinity levels highly variable. Thus, the ground water at Stock Island is classified as Class G-III ground water which is non-potable ground water having a total dissolved solids content of 10,000 mg/L or greater, or having a total dissolved solids content of 3,000 to 10,000 mg/L and having been determined to have no reasonable potential as a future source of drinking water or designated by rule as an exempted aquifer. Only the minimum criteria for ground water, known as the "free-from" standards, apply to Class G-III ground water. Fla. Admin. Code R. 62-520.430(1). These criteria require that at all times and in all places, ground water be free from discharge components in concentrations that are carcinogenic, teratogenic, mutagenic, or toxic to humans; acutely toxic within surface waters affected by ground water; pose a serious danger to the public health, safety, or welfare; create or constitute a nuisance; or impair the reasonable and beneficial use of adjacent waters. Fla. Admin. Code R. 62-520.400. There is no evidentiary basis on which to infer that the effluent from Expanded Wastewater Facility that is disposed through the injection wells will violate the free-from standards KWRU's many years of effluent monitoring at the Existing Wastewater Facility show that the effluent does not violate these standards. Further, David Rhodes, a Florida-licensed P.G. employed by DEP, credibly testified that a violation of the free- from standards necessarily would entail the presence of toxic materials in KWRU's effluent and that there would be immediate and dramatic effects on the flora and fauna at the golf course, where reclaimed water is reused for irrigation. Since such effects never have occurred, it is reasonable to infer that the effluent from the Expanded Wastewater Facility will not violate the free-from standards.53/ Additionally, as previously addressed, the credible, persuasive evidence demonstrates that no surface water quality violations will result from installation and operation of the injection wells as part of the Expanded Wastewater Facility. Accordingly, the reasonable and beneficial use of adjacent waters will not be impaired due as a result of the injection wells. Petitioners also claim that due to inadequate treatment by the Expanded Wastewater Facility, the effluent disposed in the injection wells will contain unacceptably high levels of bacteria and viruses. The persuasive evidence establishes that KWRU provides high-level disinfection prior to injecting the effluent or sending the reclaimed water for reuse at the golf course. Historical monitoring data shows that KWRU's effluent complies with applicable microbial standards, and unrebutted evidence consisting of quality-related beach closure data for the Florida Keys, gathered as part of the Department of Health's Healthy Beaches monitoring program, indicates that no beach closings in the Florida Keys ever have been attributed to KWRU's Existing Wastewater Facility. Petitioners did not prove that KWRU failed to provide reasonable assurance that operation of the injection wells authorized as part of the Project will not result in violations of applicable ground water standards. To the contrary, KWRU provided reasonable assurance that the effluent from the Expanded Wastewater Facility disposed in the injection wells authorized as part of the Project will not violate any applicable ground water standards. Alleged Water Quality Violations Due to Reuse System Petitioners allege that KWRU did not provide reasonable assurance that the storage of up to 1 MGD of reclaimed water in the reuse system storage ponds on the Key West Golf Club golf course will not cause or contribute to a violation of surface water quality standards and ground water standards. Specifically, Petitioners posit that, because the ponds are unlined, reclaimed water from the Expanded Wastewater Facility will leach from the ponds into the ground water and reach surface waters, violating surface water quality standards and ground water standards and negatively impacting human health through high levels of microbial pathogens, pharmaceuticals, and personal care products. Petitioners further allege that discharge of reclaimed water from the ponds into the ground water could mobilize constituents of concern from the Key West Landfill and a closed waste-to-energy facility, both of which are near the golf course, ultimately resulting in surface water quality standards and ground water violations. In support of these contentions, Petitioners presented the testimony of Scott Zednek, who testified that the reclaimed water, which is fresher than the surrounding ground water, may leach from the ponds into the ground water, and thereafter potentially may reach surface waters. According to Zednek, this leaching could occur because the ponds are unlined. Additionally, Zednek opined that, because there is a closed landfill near the golf course, the reclaimed water leaching from the reuse system ponds could mobilize and spread contaminants from the landfill. The persuasive evidence demonstrates that storage of the reclaimed water in the reuse system ponds will not result in violations of ground water standards or surface water quality standards. Although the golf course ponds are unlined in the sense that a high-density polyethylene or impermeable clay liner has not been installed on the bottom and sides of the ponds, over the years, marl has formed on the bottom and sides of the ponds, creating an aquitard that substantially confines the reclaimed water to the ponds, rather than allowing it to readily leach into the ground water. Further, the reclaimed water generally is less saline than the ground water underlying the course, so tends to "float" on top of, rather than readily mixing with, the denser, more saline ground water. Additionally, the evidence shows that years of historical ground water monitoring data obtained through monitoring wells on the golf course near the reuse system ponds showed no ground water standards violations as a result of storing reclaimed water from KWRU in the ponds.54/ Because the amount of reclaimed water being sent to the reuse storage ponds is not being changed by the Project, and the nutrient levels in the reclaimed water are being through AWT, there is no factual basis from which to infer that storage of the reclaimed water in the pond will result in violations of ground water standards or surface water quality standards. The persuasive evidence also does not support Zednek's view that reclaimed water leaching into the ground water from the storage ponds will mobilize pollutants under the nearby landfill. As discussed above, the persuasive evidence establishes that, due to the aquitard, there will be very little leaching of reclaimed water into the ground water, and even if such leaching did occur, there would be very little mixing of the reclaimed water with the more saline ground water. As such, there is no demonstrated factual basis on which to infer that reclaimed water will flow under, and mobilize and spread pollutants from, the landfill. Further, the evidence establishes that the predominant ground water flow direction under Stock Island is to the south- southeast. Since the landfill is located north of the reuse system ponds, any reclaimed water that did enter ground water would flow south-southeast, away from the landfill. Zednek also opined that if the storage ponds overflowed, the reclaimed water could run off into surface waters, resulting in surface water quality violations. However, the evidence establishes that KWRU will only send as much reclaimed water to the reuse storage ponds as the Key West Golf Club requests, so any assertion that the ponds will overflow is speculative. Further, even if the ponds were to overflow, Petitioners did not show that the reclaimed water would flow into surface waters, or that it would violate surface water quality standards if it were to flow into surface waters. Petitioners did not prove that KWRU failed to provide reasonable assurance that the storage of reclaimed water in the reuse system storage ponds at the Key West Golf Club will not violate any ground water standards. Stated another way, KWRU provided reasonable assurance that the storage of reclaimed water in the reuse system ponds at the Key West Golf Club golf course will not cause or contribute to violations of ground water standards or surface water quality standards. Applicability of AWT to Existing Wastewater Facility Commencing January 1, 2016, the two new treatment trains authorized by the Permit at Issue must meet the AWT standards. These treatment trains are authorized to treat wastewater to specified secondary standards through December 31, 2015. Petitioners assert that the Permit at Issue must be denied because the two new treatment trains should be required to meet AWT standards immediately upon operation, and that allowing the new treatment trains to meet secondary standards through December 31, 2015, violates section 403.806(10) and rule 62- 620.620(4). Sections 403.086(10)(c) and (d) expressly impose the AWT standards on all new or expanded domestic wastewater discharges after December 31, 2015. Accordingly, the Permit at Issue is completely consistent with the statute. Further, the Permit at Issue does not violate rule 62- 620.602(4). That rule requires a wastewater facility permit applicant to make certain specified demonstrations when a permit is renewed, revised, or reissued having a less stringent effluent limitation than contained in a previous permit. Although the Existing Permit states that the Existing Wastewater Facility has been modified to meet the AWT standards, it further states: "[t]he extended aeration process will be switched to the AWT nutrient removal system prior to January 1, 2016." The clear import of this statement is that the AWT standards are not required to be met until January 1, 2016, consistent with section 403.806(10). Because the Permit at Issue also requires the new treatment trains to meet the AWT standards commencing on January 1, 2016, the Permit at Issue does not impose a less stringent effluent limitation than that imposed by the Existing Permit; accordingly, KWRU is not required to make the so-called "anti-backsliding" demonstrations set forth in rule 62- 620.620(4). Furthermore, it is undisputed that the new treatment trains will not be constructed and operational before January 1, 2016; thus, as a practical matter, the new treatment trains must meet the AWT standards immediately upon going into operation. Thus, Petitioners have not shown that the Permit at Issue should be denied on the basis that it violates section 403.806(10) and rule 62-620.620(4). Petitioners' Standing As noted above, Petitioner Halloran, resides in Key West, Florida. His residence fronts on the water and he owns a boat. Halloran and his family use and enjoy the waters around Key West for swimming, fishing, kayaking, and other in-water recreational uses, eat local-caught seafood, and engage in nature photography. Halloran also owns rental properties that front on the water, and he owns and rents out dock space for houseboat mooring. He is a member of Last Stand. Halloran has challenged the Permit at Issue because he is concerned that the increased discharge of effluent from the Project down the injection wells will degrade the waters around Key West where he and his family engage in in-water recreational uses. He also is concerned that the increased effluent discharge, particularly nutrients, will harm the seagrasses, coral reefs, and the benthic communities in the waters around Key West. Halloran read the initial petition prepared and filed in this proceeding, and he skimmed the Amended Petition specifically to determine the changes from the initial Petition.55/ He acknowledges that he does not completely recall the entire contents of the initial petition or the Amended Petition. Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Naja Girard D'Albissin, a member of the Board of Directors of Last Stand, appeared on behalf of Last Stand. D'Albissin testified that Last Stand currently has approximately 105 members. Last Stand's mission is to promote, preserve, and protect the quality of life in Key West and the Florida Keys, with particular emphasis on protecting the natural environment. Last Stand historically has engaged in environmental advocacy directed toward governmental entities and engaged in litigation opposing activities that its members believe would harm the natural environment. In July 2014, Last Stand's Board of Directors voted to challenge the Permit at Issue. Respondent DEP stipulated that 52 members of Last Stand spend time or reside in Monroe County, 50 members enjoy the waters and natural environment of the Florida Keys, and 50 members believe that their use and enjoyment of the natural environment and economic interests in Monroe County will be adversely affected by the Project. Last Stand tendered, for admission into evidence, affidavits of some of its members attesting to the substantial interests they contend will be injured by the Project. However, Last Stand had refused to allow Respondents to engage in discovery regarding these members' alleged substantial interests; accordingly, the undersigned did not allow these members to testify at the final hearing.56/ The affidavits were excluded from admission into evidence as unsupported hearsay. See § 120.57(1)(c), Fla. Stat. Entitlement to Permit at Issue KWRU met its burden under section 120.569(2)(p) to present a prima facie case demonstrating entitlement to the Permit at Issue by entering into evidence the applications and supporting materials for the Permit at Issue for the Project. Additionally, KWRU presented persuasive, competent, and substantial evidence beyond that necessary to meet its burden under section 120.569(2)(p) to demonstrate its entitlement to the Permit at Issue. Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding to demonstrate that the Project does not meet all applicable statutory and rule requirements. Furthermore, on rebuttal, KWRU and DEP thoroughly addressed and rebutted the grounds that Petitioners allege justify denial of the Permit at Issue. The persuasive evidence demonstrates that the Project meets all applicable statutory and rule requirements. Accordingly, KWRU is entitled to issuance of the Permit at Issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2016.
