The Issue The issue in this proceeding is whether Pinewood should be granted a permit to construct and operate an air pollution source, specifically a concrete batching plant. Petitioners contend that Pinewood has failed to give reasonable assurances that it can operate the plant in harmony with the Department's rules and regulations, and that deed restrictions on the property where Pinewood proposes to construct the plant prohibit it. Pinewood and the Department contend that Pinewood has provided reasonable assurance that the plant will not result in violation of the Department's air pollution source standards.
Findings Of Fact Pinewood is seeking to construct a concrete batching plant on Big Pine Key, Florida. The plant would be located within 1,000 feet of a body of water known as "Coupon Bight." Petitioners reside in a residential area across Coupon Bight from the plant location. Their residences are approximately one mile from the plant. If the proposed plant resulted in violations of the Department of Environmental Regulation's air pollution standards, Petitioners would suffer a degradation of their living environment. This would be especially true if the proposed plant resulted in violations of the Department's standards for particulate or dust emissions. Pinewood was formed as a corporation in August, 1981. It appears that the corporation was formed primarily to construct and operate the concrete batching plant which is the subject of this proceeding. In November, 1981, Pinewood obtained applicable construction permits from Monroe County, Florida. Pinewood ordered the plant from Stephens Manufacturing Company in Kentucky. The plant was constructed on the site during November, 1981. Anthony Paterniti, Pinewood's President, was responsible for obtaining the local permits and constructing the plant. He was not aware that permits would be required from the Department of Environmental Regulation before the plant could be constructed and operated. The Department of Environmental Regulation cited Pinewood for constructing the plant without the proper permits by initiating an enforcement proceeding. The enforcement proceeding was concluded by the Department and Pinewood entering into a consent order. Pinewood paid a fine of $250. Paterniti construed the consent order as allowing him to operate the plant. During April, 1982, the plant operated for nineteen days. The Department again initiated enforcement proceedings. These proceedings were concluded by the Department and Pinewood again entering into a consent order. During this time, Pinewood filed its application with the Department to construct and operate the concrete batching plant. The plant, while already constructed, has not operated since April, 1982. The plant, which Pinewood has already constructed and proposes to operate, is a ten yard batching plant. It batches, or loads, aggregate and cement into a cement truck, where the materials are mixed while on route to a job site. The plant is large enough to load only one truck at a time. The only air pollution that is likely to result from operation of such a plant is particulate emissions, or dust. In order to reduce these emissions, a "bag house" is installed in such a manner as to trap cement dust. The "bag house" functions in the manner of a vacuum cleaner, allowing air to pass through it, but trapping emissions. In normal use, a plant such as Pinewood's would emit approximately one-half pound of cement dust per hour into the air. Without use of the "bag house" from 7 to IS pounds per hour could be expected to be emitted. A second source of particulate emissions from operation of a hatching plant is the loose aggregate that is stored adjacent to the plant. If the aggregate is not properly stored, wind can blow it about and cause substantial emission of cement dust into the air. It is possible to virtually eliminate this source of pollution. Pinewood proposes to store loose aggregate within concrete bins. During high wind episodes, the bins could be covered. Pinewood also proposes to keep loose aggregate wet by sprinkling it with water, thus reducing that source of pollution. Other dust that might result from operation of a hatching plant such as would result from the utilization of heavy trucks in dusty areas are controllable. Pinewood has placed a firm marl base around the plant which can be kept wet during dry times. So long as the proposed concrete hatching plant is properly operated, and loose aggregate in the area is properly managed, it is not likely that emissions from the operation would result in violation of the Department's air pollution standards set out in Chapter 17-2, Florida Administrative Code. Pinewood's plant would be operated by Anthony Paterniti. Paterniti is a licensed general contractor. He is familiar with the operation of batching plants. While operating the plant is not difficult and maintenance requirements are minimal, it is necessary that proper operating and maintenance procedures be carefully observed. The property on which Pinewood proposes to operate its batching plant is owned by David S. and Judy A. Shephard. It appears that the Shephards are partners in the cement batching plant venture with Pinewood, and that they are prepared to enter into a lease agreement with Pinewood. The deed by which the Shephards obtained the property contains the following deed restriction: "The property may not be used as a site of a cement plant." Local government authorities in Monroe County have apparently interpreted this restriction to not include a concrete batching plant, but rather pertain to a cement manufacturing plant. There was testimony offered at the hearing from which it could be concluded that the intent of the restriction was to include batching plants. Petitioners have contended that there is a likelihood that operation of the plant would result in violations of water quality standards in Coupon Bight. The evidence does not sustain that contention. In an effort to get the petitioners to drop their opposition to this permit application, Paterniti wrote a letter dated June 1, 1982, to all the Petitioners. The letter included the following: I think that you all should know that the Benhams [two of the originally named Petitioners] themselves have an illegal duplex on RU-1 zoning on lot 17, block 3 Pine Channel Estates. I intend to file a zoning violation with the Monroe County Zoning Dept. and have this violation of our zoning laws investigated. I am prepared to go to court over this matter. * * * I would like to ask your group to write a letter to the DER withdrawing your request for a hearing. If you do this, I will not file the zoning violation with the county, which I intend to do this week. You leave me no other choice. The tone of this letter is certainly threatening; however, it does not stand as evidence to establish that Pinewood is incapable of properly operating a concrete batching Plant. No evidence was offered as to the interests of Petitioners other than Naubereit and Kite in this proceeding, and no appearance was entered on their behalf at the hearing.
Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
Findings Of Fact Twelve-acre Lake Tresca lies at an elevation of approximately 8 feet on the northern edge of sand dunes that stretch some 250 yards south to the Gulf of Mexico in Walton County, Florida, just east of Eastern Lake. According to one of petitioners' witnesses, this group of freshwater lakes in a dune system may be unique. Lake Tresca is a source of freshwater for migrating birds, at the gulf's edge. White, great blue, and Louisiana herons feed in the lake's shallows. Purple martins are present in numbers. The eastern lobe of Lake Tresca is in excellent place for birds to feed and nest. The lake has a balanced fish population. Game fish as big as the ten-pound bass spotted by Douglas B. Bailey of the Florida Game and Freshwater Fish Commission have smaller fish on which to feed, including gambusia and other minnows that feed, in turn, on mosquito larvae. Lake Tresca is oligotrophic. There are no aquatic weeds, but there are fragrant water lilies, bladder wort, yellow-eyed grass, and other plant species valuable to wildlife. Most of the lake bottom is bare of vegetation, but the shallow, littoral portions support various plants, including significant colonies of rooted macrophytes, and furnish a suitable habitat for bedding fish. This vegetation removes some nutrients, makes others more usable, filters runoff from the surrounding yards, and stabilizes the shoreline. Bacteria and algae, primary constituents of the lake's "food web," also flourish in Lake Tresca. A shallow area of Lake Tresca stretches across part of Mr. Copelan's half-acre lot onto the Pettengills' lot. The application for permit uses this diagram to represent the configuration: * NOTE: A map of the pond is on the Recommended Order on file with DOAH and is not available in this ACCESS document. Lake Tresca Copelan Property Pettengill Property Petitioners' Exhibit No. 9. (Legend supplied.) The Pettengills have built a house on their lot for occasional, seasonal use and with a view toward his retirement. Their septic tank is about 80 feet from the lake. The house was built to take advantage of the prevailing southwesterlies and has a porch facing Lake Tresca and the causeway. The house has no air conditioning. Except for the causeway, Mr. Copelan's lot is unimproved. There are about 14 other riparian owners many of whom have built houses and put in septic tanks. After discussions between Mr. Copelan and Mr. Pettengill about an easement across the Pettengill property, to provide access overland to the Copelan property, had faltered, Mr. Copelan indicated that he might place fill dirt across the lake so as to block the Pettengills' access to the main body of the lake and to create a roadbed for travel across the lake to and from his lot. As a result, on April 20, 1980, Mr. Pettengill wrote Mr. Copelan a letter in which he stated: Any dredging, filling or other manmade changes may be accomplished only if proper permits are obtained in advance for them. I have taken the liberty of attaching copies of relevant sections of Florida Statutes and the Florida Administrative Code regarding the required procedures for these activities. Petitioners' Exhibit No. 8. Because, as he testified, Mr. Copelan had no faith in Mr. Pettengill's legal expertise, Mr. Copelan asked Marge Crawford, the real estate agent from whom he had purchased the land-locked lot, to inquire as to permits. At Ms. Crawford's instance, she and Curtis Larry Taylor, an environmental specialist employed by DER in Panama City, visited Lake Tresca on June 16, 1980. In a contemporaneous memorandum, Mr. Taylor recorded his impression that a DER permit "under the authority of Chapter 403 F.S. Section 17-4.28(2)(d) [Florida Administrative Code," DER's Exhibit No. 1, would be necessary for construction of the causeway Mr. Copelan had in mind. He furnished Ms. Crawford an application form to forward to Mr. Copelan. On June 19, 1980, Ms. Crawford wrote Mr. Copelan: I met with Mr. Taylor, of the Department of Natural Resources, Dredging and Fill Department and inspected the site at which you would like to put in a drive way. Mr. Taylor said he saw little inpact [sic] on the invironment [sic] and would recom- mend a permit be given. This would take 6 to 8 weeks with out any protests. The DNR will contact property owners around that portion of the lake. If there is a protest there will be a delay'. I think you can expect a protest from at least two owners. Fill out the application as soon as possible and mail it to the location indicated on the form. If I can be of help with he applica- tion let me know. I asked Mr. Taylor what would happen if you just went ahead and fill[ed] in that portion of the lake. He said nothing unless some- one files a complaint and then it could be costly, attorney fees. I also got another price on a road in for the long way, $8/per foot. Joint Exhibit No. 7. Mr. Copelan received and read the letters from Mr. Pettengill and Ms. Crawford, and read highlighted portions of the dredge and fill rules Mr. Pettengill sent him. In early August, without having applied for a permit, Mr. Copelan contracted with James A. Madden for the construction of a causeway across the eastern lobe of Lake Tresca. Work began in early August of 1980 and continued for four working days, a weekend intervening. Mr. Madden and his son used dump trucks and a bulldozer to haul sand from a borrow pit Mr. Madden has leased and to build a causeway 162 feet long with a top surface approximately 12 feet wide. About midway they placed a culvert with a 12-inch diameter to join Lake Tresca to the pool on the Pettengills' property severed by the causeway from the rest of the lake. On either side of the causeway, waiter lily and bladder wort are the predominant plant species. On August 11, 1980, Mr. Pettengill told DER's Mr. Taylor that work on the causeway had begun. The following day Mr. Taylor visited the site, and found yellow sand fill about 18 to 24 inches deep covering an area approximately 15 feet by 45 feet. Joint Exhibit No. 8. He found no telephone number listed for George Copelan but telephoned Marge Crawford on August 12 or 13, 1980, to ask her to tell Mr. Copelan to stop work. Joint Exhibit No. 8. On August 19, 1980, DER's Northwest District Enforcement Officer, George E. Hoffman, Jr., wrote Mr. Copelan advising him "to cease and desist from any further unauthorized filling." Joint Exhibit No. 5. By the time this letter reached Mr. Copelan, the causeway had been completed. On October 6, 1980, Mr. Copelan wrote Mr. Hoffman saying that he owned the land under the road and in general to the effect that he thought he was within his rights. Joint Exhibit No. 4. Mr. Hoffman responded with a letter to Mr. Copelan on December 23, 1980, in which Mr. Hoffman "requested that [Copelan] voluntarily agree to remove the fill and restore the area to its original contour. Joint Exhibit No. 6. This letter stated that, "Otherwise, the Department will have no alternative but to initiate a formal administrative enforcement proceeding . . . seeking the restoration." Joint Exhibit No. 6. On February 27, 1981, DER filed its notice of violation, No. DF-010- 81-NW, finding that the filling accomplished before August 12, 1980, had been accomplished without a permit, and that it "will have a detrimental [e]ffect on the water quality and may be potentially harmful . . . to the aquatic life of the lake" and that it had "created pollution violating Section 403.161(1)(a), Florida Statutes, and the rules of the Department." Joint Exhibit No. 1. Orders for corrective action contained in the same document proposed to require Mr. Copelan to reimburse DER for its expenses "in tracing, controlling and abating the source of pollution," to "cease aid desist from further unauthorized filling," and to remove the fill and restore the area to its original contours (even though by this time the causeway had been completed). Joint Exhibit No. 1. DER inspected on March 2, 1981, and learned that the causeway had been completed. Thereafter, the parties agreed to a consent order dated May 5, 1981, which provided, in part: Within thirty (30) days of the effective date of this Order, the Respon- dent shall submit an after-the-fact permit application for the construction and/or filling project described in this Order [the causeway] In the event the application is determined to be incomplete, the Respondent shall provide the requested additional information within a fifteen (15) day period. * * * In the event the application is denied, the Respondent agrees to remove the fill material and restore the area to its preproject contours within forty-five (45) days of the receipt of final agency action. Respondent does not waive his right to claim that the aforementioned fill project is exempt from the Department's permitting requirements and that this defense may be asserted by the Respondent in any future pleadings of proceedings. The Department, for and in consid- eration of the complete and timely perfor- mance by the Respondent of the obligations contained in this Consent Order, hereby agrees to waive its right to seek the judi- cial imposition of damages or civil penalties or to seek criminal penalties for the alleged violations outlined in this Consent Order. * * * 9. This Consent Order shall be a final agency action of the Department and may be enforced pursuant to Sections 120.69 and 403.121, Florida Statutes. The Respondent hereby waives any right to a hearing or administrative or judicial review of the provisions of this Consent Order provided however that the Respondent does not waive the right to assert defenses available pur- suant to Section 120.69(5), Florida Statutes, should the Department seek judicial enforce- ment of the Consent Order. The Respondent's failure to comply with the terms of this Consent Order shall constitute a violation of Section 403.161, Florida Statutes. Joint Exhibit No. 2. In accordance with the consent order, Mr. Copelan filed an application for an after-the-fact permit, which DER received on June 8, 1981. Petitioners' Exhibit No. 9. At DER's request, on August 17, 1981, James R. Webb, Esquire, counsel for Mr. Copelan, sent DER copies of a survey including a plan view and a cross- sectional view of the causeway, Applicant's Exhibit No. 2; Petitioners' Exhibit No. 10, and, on November 2, 1981, copies of a survey showing the approximate ordinary high water line. Applicant's Exhibit No. 2. Neither the application nor the supplemental information was prepared by a professional engineer. DER determined the application to be complete on November 3, 1981, and, on January 7, 1982, issued its intent to issue a permit to partially after-the-fact construct a road- way approximately 80' long by 20' wide by 3' high, in accordance with the attached drawing labelled "Fill Road" Sheet 1, Revi- sion No. 1 by R.E.P. 13 August, 1981; located in Section 19, Township 3 South, Range 18 West. Joint Exhibit No. 10. According to the case file, DER received the Pettengills' administrative petition for section 120.57 hearing on January 21, 1982; but a permit was nevertheless inadvertently mailed to Mr. Copelan on January 29, 1982. On receipt of the permit, Mr. Copelan caused oyster shells to be placed on the roadbed and sod to be planted along the sides of the causeway. The permit was followed by a letter from DER instructing Mr. Copelan to disregard it. APPLICATION INACCURATE In describing the causeway, the application gives its dimensions as "approximately 10 feet wide by 30 feet in length." Petitioners' Exhibit No. 9. In fact, the top surface of the (causeway is 12 feet wide and the causeway is broader at the base. It is 20 feet across at one point, according to Petitioners' Exhibit No. 10. From a surveyor's drawing subsequently furnished at DER.'s request, Petitioners' Exhibit No. 10, DER inferred that the road was 80 feet long, even though this drawing was not accompanied by an amendment to the written description of the project. In fact, the causeway is 162 feet long, and not 30 or 80 feet long. The application states that the culvert has a diameter of 19 inches. In fact, the culvert had a diameter of 12 inches, so that the application overstates the area of the cross-section by more than 150 percent. Under the "Remarks" section of Mr. Copelan's application appears the following: Applicant was under the belief that no permit was necessary at the time of commencement and completion of the project. Petitioners' Exhibit No. 9. In fact, Mr. Copelan had been informed twice in writing that he needed a permit to place fill in the lake and had even been furnished an application form, but went ahead anyway, without seeking legal advice, or contacting DER. Lake Tresca is not a man-made lake as stated on the application. Construction of a causeway was completed by mid-August and did not occur on September 1 and 2, 1980, as stated in the application. In what was apparently a typographical error, the township is stated as 35, rather than 3 South, on the application originally filed, Petitioners' Exhibit No. 9, but this error is rectified in a later submission. Petitioners' Exhibit No. 10. PRIVATE PROPERTY RIGHTS Since the fill was originally placed, it has spread out along the bottom or "migrated." Along its southern extent, the causeway now overlaps the Pettengills' property. The road has the effect of blocking access to Lake Tresca for the Pettengills. They have, indeed, sold their boat now that they can no longer make their wonted use of it on the lake. DISSOLVED OXYGEN, TRANSPARENCY, HEAVY METALS The water in Lake Tresca Is very clear, except for an iridescent sheen in the vicinity of the causeway, and an organic scum on the water restricted by the causeway. Analysis of water samples taken at four locations in Lake Tresca by Petitioners' own expert revealed no violations of the dissolved oxygen standards. There was speculation but no hard evidence that lead and other heavy metals associated with automobile pollution may have made their way into Lake Tresca as a result of the causeway. OILS AND GREASES Mr. Madden, the contractor, did not add oil or grease to the fill he used to build a causeway through Lake Tresca. He has used fill from the same borrow pit on other projects and has had no complaints that it was oily or greasy. But there was no oil or grease on the lake before Mr. Copelan had the road put in. When the fill was originally placed, in the fall of 1980, there was a distinct petroleum odor, for the first time, particularly in humid weather. Mr. Ryan detected a strong petroleum odor as recently as February of this year, but the odor has abated over time somewhat. Oils and greases have coated the water's surface with an iridescent film, on either side of the southern stretch of the causeway, since it was built. Nowhere else in the lake can oils and greases be detected visually. Three water samples taken near the causeway on February 6, 1982, were analyzed and found to con-tain 3.2, 4.1, and 5.4 milligrams per liter (or parts per million) of oils and greases. A water sample taken elsewhere in the lake on the same day, although at another well-vegetated location, was found to contain less than one part per 100 million (.01 mg. per liter) oils and greases. Mr. Taylor is one of three DER employees who has seen a sheen on the water near the causeway, even after the sod and oyster shells were added. Another DER employee, Lynn Griffin, testifying as an expert in general biology with a special emphasis on oil pollution, concluded that the oil and grease she saw in Lake Tresca came from the causeway, because she discovered no other possible source. Her uncontroverted testimomy specifically rejected the theory that this greasy film could be traced to septic tanks, because the bacteria in septic tanks produce a milky liquid, not an oil sheen. DER's John B. Outland testified unequivocally that the oil and grease on the surface of Lake Tresca either leached out of the fill or came from equipment operated on the fill road. Petitioners' chemist would have had to use another test in addition to the Soxhlet extraction method he did use, in order to establish to a scientific certainty that the oils and greases he identified in samples taken from Lake Tresca were petroleum hydrocarbons. But with convincing testimony that what looked like petroleum also smelt like petroleum, other evidence did establish that the oils and greases were petroleum derivatives. BIOLOGICAL EFFECTS Placement of fill on the lake bottom eliminated benthic organisms that have not reestablished themselves on the submerged causeway surface, nor on dry land above water, subject to the disturbances of automobile traffic. Habitat, shelter, and forage for fishes and invertebrates have been destroyed; bacterial and algal processes have been eliminated. No animals live on top of the submerged fill even though certain larvae may be found less than a meter away, and several animals thrive in the vegetated areas of Lake Tresca. Although the filled area covers no more than 2,000 square feet, the oils and greases spread out over a larger area, with dimensions not established by the evidence. The iridescent oily film decreases the amount of light penetrating to plants underneath and so reduces photosynthesis in benthic plants. In the short term, oils and greases obstruct gas and nutrient exchanges necessary to plant life and may cause acute toxicity or death. In the long term, oils and greases can cause neoplasia and affect the reproductive capacity and so the growth rate of animals. They can be taken into lipid-rich eggs and other tissues, contaminating the food web. The untoward effects of oils and grease are more critical in the part of the lake cut off and restricted by the causeway, because of the lack of adequate circulation. There is at present plant and animal life in this part of the lake, nevertheless, and similar fauna and flora in the shallow area of the lake stretching 300 to 400 feet toward open water on the other side of the causeway. The causeway has eliminated a narrow strip from this biologically productive area, an area that also serves to filter pollutants from upland runoff. The full extent of the deleterious effects of the oils and greases is not yet known. In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioners' proposed recommended order and the department's proposed findings of fact, proposed conclusions of law, proposed recommended order, and memorandum, all adopted by the applicant. To the extent proposed findings of fact have not been adopted, they have been rejected as unsupported by the evidence or irrelevant to the issues.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER deny the application for an after-the-fact permit to create a fill road across Lake Tresca, and order respondent George Copelan to restore the area to its preproject contours within forty-five (45) days. DONE AND ENTERED this 3rd day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1982 COPIES FURNISHED: Randall E. Denker, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Gordon D. Cherr, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James Webb, Esquire Post Office Box 385 Destin, Florida 32541 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DWYNAL and IONA PETTENGILL, Petitioners, vs. CASE NO. 82-294 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, and GEORGE COPLAN, Respondents. /
Findings Of Fact The Parties Gleason Brothers and Company (Gleason), as stipulated, is a small business party within the meaning of Section 57.111, Florida Statutes. Gleason owns real property in Brevard County, Florida, specifically described as Sections 28 and 33, Township 27 South, Range 36 East. The Department of Environmental Protection (DEP) is a state agency with jurisdiction to issue wetland resource permits and management and storage of surface water (MSSW) permits pursuant to Chapters 373 and 403, Florida Statutes. The Permit Proceeding On June 18, 1993, the Brevard County Solid Waste Management Department (Brevard County) applied to DEP for wet land resource and MSSW permits required for the county's landfill expansion and new construction. Part of the landfill project consisted in a proposal for off-site mitigation which was required to offset wetland impacts by the landfill expansion. The off-site mitigation property is several miles from the landfill site and is described as west of Interstate 95, north of State Road 500, Sections 27 and 34 Township 27 South, Range 36 East. The off-site mitigation property lies adjacent to, and east of, the subject Gleason property. Both Gleason's and the off-site mitigation property are east of the St. John's River, with Gleason's property lying between the river and the off-site mitigation property. In its 1993 application, Brevard County proposed to restore the historic natural grade of the mitigation property by removing certain dikes or berms and by filling some ditches, which berms and ditches were created many years ago by the former owners, the Platts, to improve the property for agricultural use. Some of those ditches and berms run along the property line between the Gleason and mitigation property. In August and September 1993, Brevard County requested Gleason's permission to enter its land to install two piezometers as part of a scope of work to monitor impacts of the proposed off-site mitigation project. The county provided a copy of the scope of work and a map to Gleason's attorney, Robert Riggio. On October 21, 1993, Riggio responded, by letter to Richard Rabon, Director, Brevard County Solid Waste Management Department, that Gleason would not allow permission to enter its land for hydrological monitoring. Furthermore, Riggio stated, Gleason was concerned about the effects of potential flooding and an artificial increase in the area's water table which could "upset the value and continued usability of its land". On November 15, 1993, Riggio wrote to DEP staff person, Ann Wonnacott (now, Ann Ertman) requesting notice of intended agency action on the county's landfill permits, and expressing Gleason's concern that the proposed project, including filling of ditches and removing berms, would artificially raise water levels, flood and devalue Gleason property. On February 11, 1994, Riggio sent DEP a map of Gleason's property and a legal description. On November 18, 1994, Riggio again wrote to Ann Wonnacott and objected to the landfill project on Gleason's behalf. Again, Riggio stated that the off- site mitigation plan included filling ditches which provided a flow of water in which Gleason asserted "legally recognizable rights". In the meantime, in response to Gleason's concerns, in November 1993, DEP asked Brevard County to provide reasonable assurance that the off-site mitigation project would not flood surrounding property. Brevard County's licensed professional engineers then undertook a groundwater modeling analysis and gathered information and performed testing for a stormwater modeling analysis. In reports provided in April 1994 the engineers concluded that the project would not increase flooding on Gleason's land. DEP's expert in surface water management reviewed the engineering reports, data and reports on the area from the St. Johns River Water Management District, USGS quadrangle maps and aerial photographs, and he agreed that the project would not increase flooding on Gleason's land. DEP staff review of the Brevard County applications revealed that the applications met relevant rule and statutory criteria, and on February 7, 1995 DEP issued its Notice of Intent (NOI) to issue a wetland resource permit for the onsite and off-site parts of the project, and an MSSW permit for the onsite part of the project only. The draft permit provided that no work could commence prior to issuance of the MSSW permit for the off-site mitigation work. DEP staff considered the off-site mitigation MSSW permit the "linchpin" of the entire project: without it, no work on any part of the project could commence. Gleason, though its attorney, Robert Riggio, timely filed a Section 120.57(1), Florida Statutes petition for formal administrative hearing challenging DEP's intent to issue permits to Brevard County. The petition was forwarded to the Division of Administrative Hearings. Gleason's petition raised several material issues: that the removal of the berms and filling of the ditches (called "drainage canals" by Gleason) would alter the "natural and historic hydroperiod" of Gleason's property, increasing water levels and enhancing the growth of weeds and other noxious vegetation; that it appeared that some of the ditches to be filled were actually within the boundaries of Gleason's property; and that DEP failed to adequately assess the effect of the proposed permitted action on the property of others. Discovery commenced and Gleason continued to object to Brevard County's requests to enter Gleason's land for inspections and testing. From Brevard County's perspective, the main function of filling in the ditches was to obtain additional mitigation credits for the area of the ditches. Relying on its engineers, the county did not consider that the ditches performed a significant hydrological function. At some point in time after Gleason's petition was filed, Brevard County agreed to not fill the ditches and submitted a modified application to DEP. In July 1995, Brevard County submitted to DEP its application for the MSSW permit for the off-site mitigation project (the "linchpin" permit). The application included removing the berms but did not propose filling in the ditches. In August 1995, DEP issued notices of intent to grant the revised permit and the off-site mitigation MSSW permit. Gleason, Brevard County and DEP signed a joint stipulation and motion to relinquish jurisdiction in the Division of Administrative Hearings case on December 21, 1995, The motion was granted, and Division of Administrative Hearing's files were closed. On January 3, 1996 DEP entered its final order and issued the permits, as revised. "Prevailing Party" From the time when it was first informed of the project, Gleason's primary concern was the county's proposal to fill the ditches. Whether this concern was misguided or whether it was legitimate, it was not until the petition was filed, and some time thereafter, that the county changed its application. Gleason's February 22, 1995 petition specifically requested the alternative relief of an order modifying the subject permits by leaving the "drainage canals" intact. When it obtained its relief by settlement prior to an evidentiary hearing, Gleason became a "prevailing party". A Reasonable Basis in Law and Fact Ann Wonnacott Ertman reviewed Brevard County's permit application, including the off-site mitigation project and she visited the mitigation site. By walking along the ditch between the site and the Gleason property she was able to view both properties, although obviously not the entire two sections owned by Gleason. The Gleason property viewed by Ms. Ertman was flat, and predominately dominated by wetland vegetation. She saw some cattle grazing, but no other uses or improvements to the property. As understood by Ms. Ertman, the purpose of the off-site mitigation project was to reestablish the hydrology which existed prior to the Platts' construction of the berms and ditches. Those berms prevented some flood waters from the St. Johns River and Lake Washington from flowing onto the Platt property. Removal of the ditches and berms would therefore allow the flood waters collecting on Gleason's property to sheet flow into the mitigation site. Both the Platt property and Gleason property are considered to be within the mean annual and ten-year floodplain of the St. Johns River. As viewed by DEP and Brevard County, the off-site mitigation project would reduce, not increase water, on the Gleason property. On the other hand, Gleason and its consultant conjectured that stormwater runoff flowing from the slightly higher elevations on the Platt property would flow unimpeded onto the lower Gleason property if the ditches were removed. This conjecture was based on an assumption that the ditches served a significant hydrological function by draining water off the property and transporting it away somewhere. When Gleason, through its attorney, made its concerns known to DEP, Brevard County was required to respond and its consultants were required to perform further studies and tests. Based on their studies and tests and computer modeling, Brevard County's consultants concluded that removing the ditches would not increase, but would rather slightly decrease, the amount of impervious surface area at the mitigation site and there would be a slight decrease in the volume of stormwater runoff flowing from that land to Gleason's land. Brevard County's consultants also determined that, notwithstanding the size of the ditches, the soil types in the area acted as a barrier to the water and the ditch could not exert a significant drawdown effect. All of the information available to the DEP staff who reviewed the application competently supported the conclusion that filling the ditches would have no negative effect on Gleason's adjacent property. This information included observations from staff site visits, detailed information from Brevard County's consultants, U.S.G.S. quadrangle maps, aerial photographs, and uniquely relevant documents published by the St. Johns River Water Management District. This information properly outweighed the unsupported conjectures expressed by Gleason and its consultant, and after finding the application otherwise met the statutory and regulatory criteria, DEP had a reasonable basis to issue its intent to grant the permit. DEP was never apprised of Gleason's claim that some part of the ditches were on its property until Gleason's petition was filed in response to the notice of intent to issue the permit. In its initial application Brevard County represented to DEP that it was the record owner of the land where the project was proposed. DEP does not require a detailed land survey with the application, as that is an expense that would be unnecessary if the project were ultimately disapproved. Instead, the survey is a condition of the permit; that is, it must be accomplished prior to commencement of an approved project. DEP does not authorize trespass on property not belonging to an applicant. Nor did Brevard County intentionally include Gleason-owned ditches in its project. There was no incentive for it to do so, as no mitigation credit would be allowed for such extraterritorial works. Nominal Party or Special Circumstances As the agency responsible for reviewing and acting on the applications at issue, DEP was more than a "nominal party" in this proceeding. However, in this instance, it was in the peculiar position of not being entirely in control of the outcome of the proceeding. The applicant, and not DEP, determined the project for which the permit was sought. Brevard County, and not DEP, initially chose to fill ditches, and Brevard County chose to delete that work from its amended application and from the "linchpin" application, the off-site mitigation MSSW permit. In either case, with and without the ditch filling work, DEP determined the applications met relevant criteria and merited approval. Reasonable Fees As stipulated, the fees and costs of $13,193.50 incurred by the Gleasons in the underlying action are reasonable.
Findings Of Fact Petitioner provides electric, gas and water utility service at various Florida locations. During the 1979 test year, its Fernandina Beach Water Division served an average of 2,500 residential customers, 523 general service customers and nine private fire line customers. In addition, it maintained 210 fire hydrants for the City of Fernandina Beach. Service The Utility is providing satisfactory water service. There were no service complaints presented at the public hearing, nor were there any citations or corrective orders outstanding. Rate Base The Utility seeks recognition of a $1,332,178 rate base. This amount includes $82,128 for an office building completed in the last month of the test year, a $7,600 chlorinator building completed after the test year (March, 1980) , and a pumphouse still under construction at an estimated completed cost of $106,000. Neither the amounts nor their completion dates are in dispute. However, the Commission seeks to utilize a 13-month average year rate base which would result in the exclusion of all the above facilities except for the office building investment during the final month of the test year. Both parties cite Citizens of Florida v. Hawkins, 356 So.2d 254 (Fla. 1978) in support of their positions. Although the Court discusses the various methods of computing a utility rate base, it concludes that unusual or extraordinary growth is a prerequisite to use of a year end rate base. The Utility did not demonstrate unusual or extraordinary growth. Rather, customer growth during the test year was only about two percent, mandating use of an average rate base. The Utility suggests that construction of the chlorinator was required by the federal government under the provisions of the Safe Drinking Water Act. If so, the Utility would be permitted to include this Investment in its rate base. 1/ However, the Utility was in compliance with the Safe Drinking Water Act prior to construction of the pumphouse and made no showing that it was required to undertake this project by government authority. Capitalization of interest on the funds used in construction of new facilities should be authorized. However, this amount will not be subject to inclusion in the rate base until the facility itself is included. The Utility plant was shown to be 100 percent used and useful in the public service. In view of this, and the adjustments discussed above, the Utility's average rate base for the test year is $1,103,201. See Schedule 1 for detail. Operating Revenues The Utility seeks a test year revenue authorization of $581,037 based on expenses of $456,184 and a 9.39 percent return on its proposed rate base. It seeks to include an expense item of $2,400 for tank maintenance, basing this amount on the five-year amortization of a projected $12,000 expenditure. Although this procedure is proper, since tank maintenance is periodically required, the $12,000 is the anticipated cost of future maintenance rather than an actual cost. Therefore, this figure must be adjusted to one-fifth of the last actual maintenance cost, or $1,105. Prior to December, 1979, when its office building was completed, the Utility rented the required space. Since the new building was not recognized for rate making purposes until the final month of the test year, it is proper to include the rent expense actually involved during the preceding 11 months. Therefore, an upward adjustment in expenses of $1,524 is required. Authorized expenses should also include $45,281 proposed by the Utility to meet known increases in the cost of purchased electrical power. The limitation on test year expenses is not the same as that on test year investment. Rather, Chapter 367, Florida Statutes, specifically provides for recognition of outside test year increases in electrical power costs. See Section 367.081(4)(b), Florida Statutes (1980). The Utility supported its proposed rate case expense of $5,100 by late filed exhibit. Neither the amount nor the proposed three-year amortization period were opposed by the Commission and are appropriately included herein. In view of the above findings and a 9.10 percent return on investment (discussed below) , the Utility is entitled to revise its rates to produce annual revenue of $536,970. See Schedule 2 for detail. Cost of Capital The parties agreed that 15 percent is an appropriate return on equity investment. This amount, when weighed against the current cost of debt, supports an overall 9.10 percent rate of return. Rate Structure The parties propose adoption of a base facility charge rate structure. This rate design includes a fixed charge to each customer served based on that customer's share of fixed operating costs. The second element of the base facility charge represents -- the variable cost of water actually used. This rate structure provides an equitable method of allocating service costs and is consistent with statutory requirements that rates be just and nondiscriminatory. See Section 307.081(2), Florida Statutes (1980). The Utility proposes to increase its fire hydrant charge from $8 to $12 monthly and to include this amount in its regular service rates to all customers rather than as a separate charge to the City of Fernandina Beach. The amount of the increase is consistent with overall revenue needs and was not opposed by the Commission. The procedure to include fire hydrant charges in customer charges was requested by the City Commission of Fernandina Beach and would not discriminate against any customer or group of customers, since all benefit from the fire protection represented by these charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions A, of Law, it is RECOMMENDED that Florida Public Utilities Company be authorized to file revised rates structured on the base facility charge concept, designed to generate annual gross revenue of $536,970 based on the average number of customers served during the test year. DONE and ENTERED this 18th day of December, 1980, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact On September 16, 1983, respondent/applicant, Brevard County (County), filed an application for a permit with respondent, Department of Environmental Regulation (DER), seeking authorization to modify and expand its Fortenberry Road wastewater treatment plant from 0.80 million gallons per day (MGD) to 1.40 MGD, which is designed to provide treatment necessary to meet effluent limits based on receiving water quality. The facility is located on Fortenberry Road in Merrit Island, Florida, and is classified as a Class B, Level II treatment plant. On October 14, 1983, DER acknowledged receipt of the application, plans and related material and requested certain additional items to be filed within 30 days. These items were subsequently submitted by the County. On or about January 11, 1984 DER issued its proposed agency action in the form of a draft permit wherein it gave notice that it intended to issue Permit/Certification No. DC0S-75483 and authorize the proposed activity subject to fifteen general and ten specific conditions. These are set forth in detail in the draft permit which has been received in evidence as DER Exhibit 2. Generally, the permit would authorize the County to construct ". . .a 1.40 MGD design activated sludge wastewater treatment plant with chemical additives, a tertiary sand filter, disinfection by chlorination and effluent disposal to a drainage canal and thence to Newfound Harbor." The permit will expire on July 15, 1985. On January 18, 1984, notice of intended agency action to issue the permit was published by the County in Today, a newspaper publication in Brevard County. Upon reading that notice, petitioners, Craig Zabin, Judy Ryan and Robert B. Sampson, all homeowners in Merritt Island, filed petitions requesting a hearing to contest the permit. In their petitions, petitioners generally contended the proposed construction would result in the discharge of effluent containing toxic substances into an Outstanding Florida Water (Newfound Harbor) in violation of Rule 17-4.242, Florida Administrative Code, that the plant has no operating permit, that the plant has violated "discharge standards" for the last three years, and that the plant's present discharge is harmful to human health and aquatic life in violation of various DER rules. The draft permit indicates that the plant effluent will continue to be discharged into a ditch which eventually intersects Newfound Harbor. At that point the Harbor waters are classified as Class III waters within the meaning of Chapter 17-3, Florida Administrative Code. A portion of the Harbor, well to the south of the discharge point, is classified as an Outstanding Florida Water. Uncontradicted expert testimony established that the discharge would not have an impact that was technically measurable on the portion of Newfound Harbor classified as an Outstanding Florida Water. At the present time the County has no valid temporary operating permit (TOP) or operation permit authorizing the operation of the Fortenberry Plant. Although the County applied for such a permit, DER has issued a notice of intent to deny the most recent application for a TOP and that case remains pending before the Division of Administrative Hearings (Case No. 82-2850) According to Specific Condition No. 9 of the draft permit, the County must meet the following flow requirements: 9. Initial flows shall be limited to 1.0 MGD. Additional flows, in the 0.10 MGD increments, may be authorized upon receipt of written assurance from the permittee, based on actual test data, that the treatment plant will achieve the required level of treatment at such higher flows. Therefore, upon completion of construction activities, the County will be authorized a maximum flow of 1.0 MGD at the facility which is a 0.20 MGD increase over the most recently expired TOP. This approximates the current average flows of almost 1.0 MGD. Additional increases, in increments of 0.10 MGD, may be earned by the County by demonstrating with test data that the plant will continue to comply with the effluent limitations established by Specific Condition No. 10 of the draft permit. 2/ The latter limitations are based on a waste load allocation study that was completed in the late 1970s. The draft permit does not increase the allocation of the plant--rather the limits are the same that were formulated when the waste load study was originally completed. The existing facility consistently violates the limits of its allocated waste load. Construction of the additional treatment systems should bring the effluent from this plant into compliance with its waste load allocation. The amount of nitrogen, phosphorus and total suspended solids contributed to Newfound Harbor will be significantly reduced if the additional treatment facilities are constructed. Failure to improve and expand the existing facility will result in the plant continuing to contribute the same poor quality effluent to the waters of Newfound Harbor. Testing by the Department and the County has revealed the presence of high levels of lindane and malathion in the plant's effluent. These substances are spawned by insecticides and are highly toxic to aquatic organisms and invertebrates. Despite considerable investigation by the County, the source of these toxic chemicals is not known. The County is now a party to an enforcement action instituted by the Department on February 28, 1983, and it is in that proceeding, rather than the case at bar, that the appropriate steps to rid the effluent of these prohibitively high levels of malathion and lindane should be determined. In this regard, the Department has represented that it will take all reasonable steps in the enforcement action to insure that the toxic chemicals are eliminated or reduced to tolerable levels by the County, including the requirement that specially designed improvements be made to the plant. 3/ This action should be completed at the very earliest possible date since additional flows from the plant may be authorized at a later date thereby increasing the amount of toxic chemical discharge assuming all other variables remain constant. While the petitioners' concerns about the chemicals are well- founded and legitimate, the issuance of the permit should not be delayed since the plant is currently violating its wastewater load allocation and polluting the waters of Newfound Harbor. The applicant has provided reasonable assurance that the proposed construction would comply with the standards of Chapter 17-6, Florida Administrative Code, and not emit or cause pollution in contravention of Department standards or rules. Such assurances were not controverted by petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be issued to Brevard County for its Fortenberry Plant in accordance with the terms and conditions of the draft permit. DONE and ENTERED this 4th day of April, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1984.
The Issue The issue to be determined in this case is whether a supplemental site certification should be issued to Lee County for the construction and operation of Unit No. 3 at Lee County's Solid Waste Energy Recovery Facility (Facility), in accordance with the provisions of the Florida Electrical Power Plant Siting Act (PPSA), Sections 403.501 - .518, Florida Statutes. (All statutory references are to the 2002 codification of the Florida Statutes.)
Findings Of Fact The Applicant The Applicant, Lee County, is a political subdivision of the State of Florida. Lee County owns the existing Facility and will own Unit No. 3. The Facility was designed, built and is operated by a private company, Covanta Lee, Inc. (Covanta), pursuant to a long-term contract with Lee County. It is anticipated that Covanta or another private company will design, construct and operate Unit No. 3 for the County. History of the Project In 1985, the Florida Legislature enacted the Lee County Solid Waste Disposal and Resource Recovery Act (the Act), which authorized Lee County to construct, operate, and maintain a solid waste disposal and resource recovery system for the benefit of Lee County's residents. In 1989, pursuant to the Act, Lee County adopted an Integrated Solid Waste Management Master Plan (Plan), which established a comprehensive plan for the management, reuse, recycling and/or disposal of the solid waste generated in Lee County. Lee County's Plan was based on the development of: (a) an aggressive recycling program to reduce the quantity of materials requiring disposal; (b) a waste-to-energy facility for waste reduction and energy recovery from those materials that are not recycled; and (c) a landfill for the disposal of ash and by- pass waste (i.e., materials that are not recycled or processed in the waste-to-energy facility). Lee County has implemented its Integrated Solid Waste Management Plan with innovative approaches and state of the art technology. Lee County has a comprehensive recycling program that handles a wide array of materials, including: (a) waste from residential, commercial, governmental, and institutional facilities; (b) household hazardous waste; (c) yard waste; (d) recovered materials; (e) construction and demolition debris; and (f) electronic waste. Lee County established a recycling and materials separation goal of 40 percent for its residents, even though the State of Florida's goal is 30 percent. From 1993 through 2000, Lee County exceeded the State's 30 percent goal. In 1998, Lee County's recycling rate was approximately 38 percent, which was higher than that of any other county in Florida. Consistent with its Plan, Lee County built a modern landfill, which is equipped with two synthetic liners, two leachate collection systems, and a network of groundwater monitoring wells to ensure the protection of the environment. Lee County's landfill is located in Hendry County, pursuant to an interlocal agreement between Lee County and Hendry County. Under this agreement, the solid waste from both counties is taken to Lee County's Facility for processing and then the ash and by-pass waste are taken to the landfill for disposal. This cooperative, regional approach to solid waste management issues has enabled Lee County and Hendry County to provide environmentally sound, cost-effective programs for the residents of both counties. In 1992, the Governor and Cabinet, sitting as the Siting Board, approved the construction and operation of Units No. 1 and No. 2 at the Facility, and certified an ultimate site capacity of 60 megawatts (MW), based on the operation of three municipal waste combustor (MWC) units. Units No. 1 and No. 2 have been in commercial operation since 1994. Despite Lee County's comprehensive recycling program, the amount of solid waste delivered to the Facility has increased each year since the Facility began operation, primarily due to population growth. In 1999, Lee County's solid waste deliveries were equal to the Facility's guaranteed processing capacity (372,300 tons). In 2000, the Facility processed more than 392,000 tons of solid waste, but the County still had to dispose of nearly 44,000 tons of processible waste in its landfill. Current population projections for Lee and Hendry Counties suggest that the amount of processible solid waste will continue to increase, reaching almost 550,000 tons by 2010. Lee County has decided that it should expand the Facility, consistent with Lee County's long-standing Plan, rather than discard processible waste in a landfill. The Facility was designed to readily accommodate the construction of a third MWC unit. If approved and built, the third unit (Unit No. 3) will be operating at or near its design capacity by 2010 (i.e., within five years after it commences commercial operations). For these reasons, on November 18, 2002, Lee County filed its Supplemental Application with DEP for the construction and operation of Unit No. 3. The Site The Facility is located east of the City of Fort Myers, in unincorporated Lee County. The Facility is approximately 2.5 miles east of the intersection of Interstate-75 and State Road 82, on the north side of Buckingham Road. The County owns approximately 300 acres of land at this location, but only 155 acres (which constitutes the Site) was certified under the PPSA for the Facility. The Site currently includes the Facility, a household hazardous waste drop-off area, a waste tire storage facility, a horticultural waste processing area, and a recovered materials processing facility. A solid waste transfer station is under construction at the Site. Even after the Facility is expanded to accommodate Unit No. 3, approximately 63 percent of the Site will be used solely as buffer and conservation areas. The Surrounding Area There are large buffer areas around the Site. A Florida Power & Light Company (FPL) transmission corridor, containing electric transmission lines, is located along the western boundary of the Site. Approximately three-quarters of a mile to the west of the Site is a limerock, fill, and topsoil mining operation. Immediately north of the Site is approximately 145 acres of undeveloped land owned by the County. A 135-acre County-owned park is adjacent to the Site's eastern property line. Scattered single-family homes are located northeast and farther east of the Site. An adjacent parcel southeast of the Site was previously used as a sanitary landfill (which has been closed and covered), and is now owned by the City of Fort Myers and private individuals who use it for livestock grazing. The land immediately south of the Site is undeveloped. The Gulf Coast Sanitary Landfill is located three miles directly south of the Site. Site Suitability The Site is well-suited for the addition of Unit No. 3. The Site has sizable buffer areas on all sides. Potable water, reclaimed water, and wastewater services are already provided to the Site through existing pipelines. The Facility is near an existing electrical substation (Florida Power & Light Company's Buckingham Substation). An existing electrical transmission line connects the Facility to the substation. Zoning and Land Use In 1991, the Siting Board determined that the Site and Facility are consistent and in compliance with the applicable land use plans and zoning ordinances, based on the construction and operation of three MWC units at the Facility. The Site was zoned for an Industrial Planned Development, and was designated as Public Facilities in the future land use map of Lee County's comprehensive land use plan, specifically to allow the Facility to be built and operated on the Site. The Existing Facility The Facility currently consists of Units No. 1 and No. 2, which have been in commercial operation since 1994. Each MWC unit has a nominal capacity of 600 tons per day (tpd) of solid waste (660 tpd using a reference fuel with a higher heating value of 5000 British thermal units per pound (Btu/lb)). The two MWC units generate steam that is used to drive an electric turbine generator, which generates approximately 39 MW of electricity. The Facility also includes an ash management building, cooling tower, stack, stormwater management ponds, water treatment system, electrical switchyard, electrical transmission lines, and related facilities. Solid waste collection trucks enter the Site from Buckingham Road. They follow an access road to the County's scale house, where the trucks are weighed, and then the trucks are directed to the Facility. The trucks drive inside the Facility and dump the garbage into a refuse pit. A crane mixes the garbage in the pit. The crane then places the garbage in a hopper, which feeds into the combustion chamber where the garbage is burned. The air in the combustion chamber passes through the Facility's air pollution control equipment, and then out the stack. Ash from the combustion process is quenched and then is deposited onto an enclosed conveyor, which takes the ash to an ash management building. The ash then is loaded into trucks and taken to the County's existing landfill in Hendry County. As a result of this process, the amount of fill being taken to the existing landfill is reduced by approximately 90 percent. The New Project-MWC Unit No. 3 The Project involves the construction and operation of a new MWC unit (Unit No. 3) at the Facility. The new unit will be substantially the same as the two existing MWC units. The new unit will have the capacity to process 600 tpd (nominal) of solid waste (660 tpd at 5000 Btu/lb). A new electric turbine generator will be installed and it will generate approximately 20 MW of additional electricity. In addition, the cooling tower will be expanded, the ash management building will be expanded, a lime and carbon silo will be installed, and the new unit may be connected with the two existing units. Construction of Unit No. 3 The Facility was originally designed and built to accommodate the addition of a third MWC unit, thus making the construction of Unit No. 3 relatively simple, without disrupting large areas of the Site. Unit No. 3 will be located adjacent to the two existing MWC units. The expansion of the cooling tower will be adjacent to the existing cooling tower. Construction of Unit No. 3 will occur in previously disturbed upland areas on the Site. Construction of Unit No. 3 will not impact any wetlands or environmentally sensitive areas on the Site. No new electrical transmission lines or improvements will need to be built to accommodate the additional electrical power generated by Unit No. 3. No new pipelines or other linear facilities will need to be built for the Project. Operation of Unit No. 3 The basic operation of the Facility will not change when Unit No. 3 becomes operational. Solid waste will be processed at the Facility in the same way it is currently processed. The Facility has been in continuous operation since 1994, and has an excellent record for compliance with all applicable regulations, including regulations concerning noise, dust, and odors. All of the activities involving solid waste or ash occur inside enclosed buildings. The refuse pit is maintained under negative air pressure, thus ensuring that dust and odors are controlled within the building. Because the operations at the Facility will remain the same after Unit No. 3 becomes operational, no problems are anticipated due to noise, dust or odors. The Facility's basic water supply and management system will remain the same after Unit No. 3 becomes operational. Treated wastewater from the City of Ft. Myers' wastewater treatment plan (WWTP) will be used to satisfy the Facility's need for cooling water. Potable water will be provided to the Facility from the City's water supply plant. On-site wells will be available for emergency water supply purposes; however, the wells have not been regularly used as a source of back-up cooling water since the Facility became operational. The County's water supply plan maximizes the use of reclaimed water and minimizes the use of groundwater. To the extent feasible, the Project uses all of the reclaimed water that is available before it relies on groundwater. The Facility also recycles and reuses water to the greatest extent practicable. Unit No. 3 will not discharge any industrial or domestic wastewater to any surface water or groundwater. Most of the wastewater from the cooling tower will be recycled and reused in the Facility. Any excess wastewater will be discharged to the City of Fort Myers' WWTP. Stormwater runoff from the Project will be collected and treated in the existing system of swales and detention/ retention ponds on the Site. Ultimate Site Capacity The construction of Unit No. 3 will not expand the Facility beyond the boundaries of the Site certified by the Siting Board in 1992. The operation of Unit No. 3, together with the operation of Units No. 1 and No. 2, will not increase the electrical generating capacity of the Site beyond the 60 MW certified by the Siting Board in 1992. Air Quality Regulations The County must comply with federal and state New Source Performance Standards (NSPS) and Best Available Control Technology (BACT) requirements, both of which impose strict limits on the Facility's airborne emissions. The County also must comply with Ambient Air Quality Standards (AAQS) and Prevention of Significant Deterioration (PSD) standards, which establish criteria for the protection of ambient air quality. The addition of Unit No. 3 must undergo PSD review because the Project is a new source of air pollution that will emit some air pollutants at rates exceeding the threshold levels established under the PSD program. PSD review for the Project is required for airborne emissions of particulate matter less than 10 microns in diameter (PM10), MWC metals, MWC organic compounds, MWC acid gasses, sulfur dioxide (SO2), nitrogen oxides (Nox), carbon monoxide, mercury, fluorides, and sulfuric acid mist (SAM). Best Available Control Technology A BACT determination is required for each pollutant for which PSD review is required. BACT is a pollutant-specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. As part of the BACT determination, all available and feasible pollution control technologies being used worldwide are evaluated. As part of its BACT analyses, DEP determined that a fabric filter baghouse will control the Facility's emissions of particulate matter, a scrubber will control acid gases, a selective non-catalytic reduction system (SNCR) will control NOx, an activated carbon injection system (ACI) will control mercury emissions, and proper facility design and operating methods will control other pollutants. These air pollution control technologies are currently used in Units No. 1 and No. 2, and they have performed extremely well. Units No. 1 and No. 2 are among the best operated and controlled MWC units currently operating in the United States. Unit No. 3 will have better, more modern, and more sophisticated air pollution control systems than Units No. 1 and No. 2. In its PSD analysis for the Project, DEP determined the emission limits for the Project that represent BACT. All of the BACT emission limits determined by DEP for Unit No. 3 are as low as the limits established by the United States Environmental Protection Agency (EPA) in the NSPS (40 CFR 60, Subpart Eb) for new MWC units, based on the use of Maximum Achievable Control Technology (MACT). Indeed, DEP's BACT emission limits for Unit No. 3 are lower than EPA's MACT emissions limits for: (a) particulate matter; (b) sulfur dioxide; (c) carbon monoxide; (d) nitrogen oxides; and (e) mercury. The BACT emission limits, as determined by DEP, are included in the proposed Conditions of Certification for Unit No. 3. The Facility's proposed air pollution control systems are proven technologies that can achieve the proposed BACT emission limits. The Facility will use an array of continuous emissions monitors to help ensure that the Facility is continuously in compliance with the BACT emission limits. Protection of Ambient Air Quality The EPA has adopted "primary" and "secondary" National Ambient Air Quality Standards (NAAQS). The primary NAAQS were promulgated to protect the health of the general public, including the most susceptible groups (e.g., children, the elderly, and those with respiratory ailments), with an adequate margin of safety. The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility, and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Florida has adopted EPA's primary and secondary NAAQS, and has adopted some Florida AAQS (FAAQS) that are more stringent than EPA's NAAQS. Lee County and DEP analyzed the Project's potential impacts on ambient air quality, using conservative assumptions that were intended to over-estimate the Project's impacts by a wide margin. These analyses demonstrate that the maximum impacts from Unit No. 3 will be less than one percent of the amount allowed by the ambient air quality standards. The maximum impact from the Facility (i.e., all three units) will be less than or equal to 1.2 percent of the amount allowed by the FAAQS and NAAQS. Unit No. 3 and the Facility will not cause or contribute to any violations of the FAAQS or NAAQS. The maximum impacts of Unit No. 3 and the Facility, when operating under worst case conditions, will be less than the regulatory levels that are deemed "significant" (i.e., less than the numerical thresholds set by EPA as "significant impact levels"). The Facility's impacts on ambient air quality will be immeasurably small and will be indistinguishable from ambient background conditions. Non-criteria pollutants are substances for which there are no AAQS. The Department's Air Toxics Group has established non-enforceable guidelines known as ambient reference concentrations (ARCs) (also known as "No Threat Levels") for the non-criteria pollutants. DEP believes there is no health or environmental threat associated with ambient air impacts less than the ARCs. In this case, the maximum impacts of the Facility (3 MWC units) will be less than 50 percent of any of DEP's ARCs. For most parameters, the Facility's maximum impacts are less than 10 percent of the applicable ARCs. Other PSD Analyses The PSD program provides protection for those areas that have good air quality. Different areas of Florida have been designated as PSD "Class I" or "Class II" areas, depending upon the level of protection that is to be provided under the PSD program. In this case, the Project is located in a PSD Class II area. The nearest PSD Class I area is the Everglades National Park (Everglades), which is approximately 90 kilometers (km) south-southeast of the Site. The analyses performed by Lee County and DEP demonstrate that the Project's impacts on the ambient air quality in the vicinity of the Site will be insignificant. The analyses performed by Lee County and DEP also demonstrate that the Project's impacts on the ambient air quality in the PSD Class I area at the Everglades will be insignificant. The Project will not significantly affect visibility in the Class I area, regional haze, or other air quality-related values. Compliance With Air Standards Lee County has provided reasonable assurance that the Project will comply with all of the applicable state and federal air quality standards and requirements. Among other things, Lee County has provided reasonable assurance that the airborne emissions from the Project, alone and when operating with the two existing MWC units at the Facility, will not: (a) cause or contribute to the violation of any state or federal ambient air quality standard; (b) cause or contribute to a violation of any PSD increment for any PSD Class I or Class II area; (c) cause any adverse impacts on human health or the environment; (d) exceed any ARC guideline established by DEP for non-criteria pollutants; or (e) cause any adverse impacts to soils, vegetation or wildlife. Lee County also has provided reasonable assurance that Unit No. 3 and the Facility will be able to comply with the Conditions of Certification involving air issues. Human Health and Ecological Risk Assessments As indicated above, the County has performed extensive analyses of the Facility's emissions and impacts to demonstrate compliance with the requirements of state and federal air quality regulations. In addition, the County has taken other measures to address public concerns about the potential impacts associated with the Facility's airborne emissions. In 1992, the County's expert consultants conducted a human health and ecological risk assessment, which evaluated the potential impacts associated with the airborne emissions of mercury and dioxin from the County's Facility. The assessment demonstrated that the operation of the Facility would not adversely affect humans or threatened or endangered species. At the request of the United States Fish and Wildlife Service, the County conducted a supplementary risk assessment in 1992, to more thoroughly evaluate the potential impact of the Facility's mercury emissions on the Florida panther. Among other things, the supplementary assessment evaluated the panther's exposure to mercury through a complex food chain. The County's supplementary assessment confirmed that the Facility would not cause adverse impacts to the panther. The County also initiated a biomonitoring program, which was designed in conjunction with the U.S. Fish and Wildlife Service to identify background concentrations and trends for mercury in key indicator species within the local aquatic environment (i.e., largemouth bass, oysters, and mosquitofish). The County's biomonitoring program was started in 1993, and continued after the County's Facility commenced operations in 1994. The data collected in the biomonitoring program indicate that the mercury concentrations in these key species have not increased as a result of the operation of the Facility. In 2002, the County's consultants completed a new, large-scale, evaluation of the human health and ecological risks associated with the Facility's airborne emissions. The County's 2002 risk assessment evaluated the cumulative impacts of the entire Facility, with all three MWC units in operation. The County's 2002 risk assessment was conducted in compliance with current EPA guidance. The risk assessment considered hypothetical human receptors (e.g., infants, children, and adults) that were engaged in different types of behavior (e.g., a typical resident; a beef farmer; a subsistence fisherman) and were exposed through multiple pathways (e.g., inhalation; ingestion of soil; ingestion of local produce, beef and/or fish) to both acute short-term and chronic long-term impacts from the Facility. The risk assessment was designed to overestimate the potential impacts of the Project, and thus be protective of human health and the environment. The risk assessment relied upon the latest EPA data for mercury, dioxin, and the other chemicals of concern, as set forth in EPA's 1997 Mercury Report to Congress, EPA's 2000 Dioxin Reassessment, and other relevant documents. The County's 2002 risk assessment demonstrates that the Facility's airborne emissions will not measurably increase the typical concentrations of chemicals in the environment. For example, even at the point of maximum impact, the maximum environmental mercury and dioxin concentrations associated with the operation of the Facility will be far below the levels that are typically found in the environment and they will be immeasurably small. The County's 2002 risk assessment also demonstrates that the potential risks associated with the Facility's emissions will not exceed, and in most cases will be much less than, the risks that are deemed acceptable by the EPA and DEP for the protection of human health and the environment. The County's findings are consistent with the findings in environmental monitoring studies and risk assessments that have been performed for other modern waste-to-energy (WTE) facilities in the United States. Indeed, the environmental monitoring studies conducted at similar WTE facilities have shown that risk assessments, like the ones performed for Lee County, overestimate the actual impacts. In light of the evidence presented by the County in this case, the Facility should not have any measurable effect on human health or the environment, even when all three MWC units are operational. Other Potential Environmental Impacts The County's 2002 risk assessment primarily focused on the Facility's maximum impacts under worst case operating conditions. The maximum concentrations in the ambient air and the maximum deposition rates resulting from the Facility's mercury emissions will occur within 2.5 km (approximately 1.5 miles) of the Site. The ambient air concentrations and deposition rates at all other locations beyond the Site will be even lower. EPA studies of similar facilities have shown that mercury deposition rates decrease at least 100 times (i.e., by a factor of 100) within the first 10 km. In this case, the nearest portions of the Everglades are approximately 90 km from the Site. Moreover, the generally prevailing winds at the Site blow toward the Gulf of Mexico, not toward the Everglades. Approximately 90 percent of the time, the wind does not blow from the Site toward the Everglades. For these and other reasons, the Facility's mercury emissions will have an insignificant impact on the Everglades. The Facility's emissions of nitrogen oxides (i.e., NOx) will not cause or contribute to violations of any water quality standards in any surface waterbody. Environmental Benefits of the Project The addition of Unit No. 3 will provide significant environmental benefits to Lee County and Hendry County. The solid waste processed by Unit No. 3 will reduce the volume of processible solid waste by approximately 90 percent. By reducing the volume of processible waste, the Facility will significantly extend the useful life of the Lee County/Hendry County regional landfill, effectively postponing the need to build a new landfill in Lee County or Hendry County. The Project will also provide environmental benefits to the State of Florida. For example, the Facility will produce approximately 1.88 billion kilowatt-hours of electricity from discarded materials during the next 20 years. In this manner, Unit No. 3 will reduce the need to use fossil fuels to generate electricity at traditional power plants. Unit No. 3 will eliminate the need to use approximately 5.54 million barrels of oil, and thus will save approximately $150 million in oil purchases over the next 20 years. In addition, the County will recover ferrous and non-ferrous metals from the Facility's ash, thus recycling resources that otherwise would be buried with the County's solid waste in a landfill. Socioeconomic Benefits of the Project The local economy and labor market will benefit from approximately $70 million that Lee County will spend to construct the Project. A significant amount of construction supplies, such as concrete, structural steel, glass, piping, fittings, and landscape materials, are anticipated to be purchased from local businesses. The Project will provide jobs for over 125 construction workers during the peak of construction activities. The addition of Unit No. 3 will also provide approximately nine new permanent jobs at the Facility, with an increase in the Facility's annual payroll of approximately $400,000. WTE Criteria in Section 403.7061 Section 403.7061, Florida Statutes, establishes several criteria that must be satisfied before an existing waste-to- energy facility may be expanded. Lee County has provided reasonable assurance that the Project will satisfy all of the standards and criteria in Section 403.7061, Florida Statutes. Among other things, the County has demonstrated that Lee County's waste reduction rate will exceed 30 percent when Unit No. 3 begins operation. Compliance with Environmental Standards Lee County has provided reasonable assurance that the Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project's impacts on air quality, water consumption, stormwater, and wetlands. The location, construction, and operation of the Project will have minimal adverse effects on human health, the environment, the ecology of the State's lands and wildlife, and the ecology of the State's waters and aquatic life. The Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional or state comprehensive plan. The Conditions of Certification establish operational safeguards for the Project that are technically sufficient for the protection of the public health and welfare, with a wide margin of safety. Agency Positions and Conditions of Certification On December 11, 2001, the PSC issued an order concluding that the Project was exempt from the PSC's "determination of need" process, pursuant to Section 377.709(6), Florida Statutes. DEP, DOT, DCA, and SFWMD all recommend certification of the Project, subject to the Conditions of Certification. The SWFRPC determined that the Project is "Regionally Significant and Consistent with the Regional Strategy Plan," but did not recommend any conditions of certification for the Project. Lee County has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting a supplemental site certification for the construction and operation of Unit No. 3 at the Lee County Solid Waste Energy Recovery Facility, in accordance with the Conditions of Certification contained in Appendix 1 to DEP Exhibit 2. DONE AND ENTERED this 19th day of August, 2003, in Tallahassee, Leon County, Florida. S _________________________________ RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2003.
The Issue The issues in this case are whether Respondent, Nemi, Inc., should pay a $500.00 administrative fine for maintaining an unpermitted stationary installation that is reasonably expected to be a source of water pollution (Count I); whether it should pay an administrative fine of $9,500.00 for failing to submit a completed Site Assessment Report (SAR) within 270 days of discovery of the discharge of chemical solvents (Count II); whether it should pay investigative costs and expenses in the amount of $1,500.00 incurred by Respondent, Department of Environmental Protection (Department) (Count III); and whether it should take corrective action, as described in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice of Violation) issued on January 23, 2009.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is a for-profit corporation registered to do business in the State. Respondent's president and registered agent is Neil Schuberg, who represented the corporation at hearing. Respondent is the owner of a 1.1-acre parcel of real property located at 6801 Northwest 17th Avenue, Fort Lauderdale, Florida. The property is situated in what is known as the Gateway Industrial Center just south of the City of Pompano Beach and midway between the Florida Turnpike and Interstate 95. The parcel is rectangular shaped and is approximately 90 feet wide by 180 feet long. The property is further identified by the Broward County Property Appraiser as Parcel Identification Number 494209050040. A one-story warehouse and parking lot are located on the property, which is currently leased by Respondent to a testing laboratory. The evidence shows that for at least since 1981 David R. Ligh owned the property until his death. After he died, his widow, Elsie M. Ligh, sold the property in 1994 to Clayton John Pierce subject to a mortgage in the amount of $167,640.00. Mr. Pierce began operating a business on the premises known as Combined Roof Services, Inc. In 1995, Mr. Pierce decided to sell the property. A potential buyer, S & S Propeller Company, retained the services of Buck Eco-Logic, Inc., an environmental consulting firm, to prepare an environmental site assessment for the purpose of "determining the suitability of property for ownership by [S & S Propeller Company]." When it first inspected the site in July 1995, Buck Eco-Logic, Inc., discovered three thirty-five gallon drums and a twenty-gallon black plastic tub, all labeled "hazardous waste" and reflecting that they had contained tetrachloroethene (also known as perchloroethylene) waste. This is a chemical solvent that is typically used by dry cleaning establishments. The labels carried the name and "EPA ID number" of Family Dry Cleaners located at 6804 Stirling Road, Davie, Florida, an address which appears to be around ten to twelve miles south of the subject property. The three drums were lying on their sides on the northern end of an asphalt parking area beneath overgrown Brazilian pepper trees and were empty; the empty twenty-gallon tub was located inside the building on the property. Soil borings on the property performed by Buck Eco- Logic, Inc., revealed concentrations of tetrachloroethene at 10,613 parts per billion, which exceed allowable standards. Tetrachloroethene and its breakdown products are a solid waste, as defined by Florida Administrative Code Rule 62-701.200(113). A Phase I Environmental Site Assessment (Phase I ESA) dated August 13, 1995, was prepared by the consulting firm and sets forth in detail the results of its inspection. See Department Exhibit 2. The sale was never consummated. Later that year, Mr. Pierce engaged the same consulting firm to perform a Phase II Environmental Site Assessment of the property. That assessment revealed concentrations in groundwater ranging from 8,840 parts per billion to 173,000 parts per billion of tetrachloroethene, which exceed the State Clean Soil Criteria and State Maximum Contaminant Levels. The report, issued on October 13, 1995, was received in evidence as Department Exhibit 3. On October 30, 1995, a Mr. Pivnick, an attorney with the firm of Dombroff & Gilmore, P.A., which represented Mr. Pierce, notified the Department by letter that the empty drums and tub had been discovered on the property. The letter also attached a copy of the Phase I ESA. Mr. Pivnick was instructed by the Department to contact the local police department to report the incident as well as the state warning system for reporting discharges to the environment. Also, the Department contacted other local agencies and the United States Environmental Protection Agency (EPA). In October 1995, Mr. Pierce vacated the premises and ceased operating Combined Roof Services, Inc. In January 1996, he began leasing the property to Sun Valley Industries, also a roofing repair business, until that firm vacated the premises in December 1997. With the use of grant monies, the Department engaged the services of International Technology Corporation to prepare a Preliminary Investigation Report (PIR) for the property. That report was issued on February 13, 1997. See Department Exhibit The PIR recommended that additional monitoring of the site (through shallow monitoring wells, soil samples, groundwater samples, and groundwater flow direction) be made to quantify the presence of chlorinated solvents. Again with the use of grant monies, in 1997 the Department engaged the services of Post, Buckley, Schuh & Jernigan, Inc., to prepare a Site Inspection Report (Report) for the subject property. The Report was issued in March 1998. See Department Exhibit 5. Excessive tetrachloroethene, Cis-1, 2- dichloroethene, and trichloroethylene were detected in ground water samples, while tetrachloroethene was detected in all seven soil samples. On April 2, 1998, Ms. Ligh assigned the mortgage on the property to Nemi, Inc., for around $100,000.00. Mr. Schuberg explained that he was able to purchase it at a discount because Mr. Pierce had ceased making payments on the mortgage and had warned Ms. Ligh that if she foreclosed on the mortgage, she would be responsible for cleanup costs on the property exceeding a million dollars. While Mr. Schuberg acknowledged that he was aware of a contamination problem on the property, he says the mortgage was purchased as an investment, and he never thought he would actually acquire the property because he believed Mr. Pierce would continue to make the mortgage payments. After failing to make payments on the mortgage, on September 21, 1999, Mr. Pierce executed a Warranty Deed in Lieu of Foreclosure in favor of Nemi, Inc. Based on conversations with Mr. Pierce at that time, Mr. Schuberg says he was under the impression that the spill was much smaller than it actually was, and that it would be cleaned up by the Department. At hearing, Mr. Schuberg characterized Mr. Pierce as "a hustler and a liar." After Mr. Pivnick's report of contamination was received, the Department, along with the Broward County Department of Natural Resource Protection, initiated an investigation (probably in late 1995 or early 1996) in an attempt to verify the source of the contamination. Because Family Dry Cleaners "was on the top of [its] list," the Department first sought to determine whether that firm had actually deposited the drums and tub on the subject property. It learned that in 1994, or a year before the contamination was reported to the Department, Family Dry Cleaners had been evicted by its landlord, Lincoln Park. According to the Department, this "led to a dead- end" as far as Family Dry Cleaners was concerned. However, that business had been replaced by another tenant, Liberty Dry Cleaners. The Department then attempted to ascertain whether Lincoln Park or the new tenant might have been responsible for transporting the drums and tub to the subject property and dumping the waste. However, the Department was unable to confirm that either of the two had done so. Photographs of the drums and tub were made by Buck Eco- Logic, Inc., when it conducted an assessment in July 1995. Because the empty drums and tub were later removed from the site by unknown persons, the Department was only able to review the photographs when it conducted its investigation. Photographs of the drums indicated that they were larger than the twenty-gallon drums normally used by a dry cleaning establishment, and the labels on the drums were not perforated or dot matrix, which are more typical of those used by dry cleaners. For this reason, and because the empty tub was found inside the building on the property, the Department attempted to determine if Mr. Pierce had purchased the contaminants for use in his operations; it was not able to confirm this fact. The Department also contacted local law enforcement officials to see whether a criminal investigation could be launched. As noted above, however, the drums and tub had been removed by unknown persons while Mr. Pierce still had possession of the property and there was no forensic evidence for law enforcement officials to examine. The result of the investigation was that the Department was unable to determine who deposited the drums on the site or the exact location where the contents were first dumped. Although Respondent contended that the Department could have easily determined who removed the empty drums and tub from the subject property by examining the manifests of the carriers who engage in that type of business, the Department investigator did not attempt to do this since the yellow pages in the telephone directory reflected at least six pages of transporters in this type of business. Further, there is no evidence that a commercial transporter was even involved. For all of these reasons, the Department looked to the current owner of the property, Respondent, as the entity responsible for site rehabilitation since there were, and still are, contaminants leaching into the groundwater and aquifer system. Specifically, as of 2007, or twelve years after the discharge occurred, the groundwater on Respondent's property was still contaminated with tetrachloroethene, trichloroethylene, and cis-1, 2-dichloroethene exceeding the Department's groundwater standards. Also, the same contaminants exceeded the Department's soil cleanup target levels based on ground water criteria. Because rainfall and surface water continue to come into contact with the contaminated soil, and there is no liner or impervious cap in place, the installation is reasonably expected to be a source of water pollution. On September 12, 2001, the Department sent a letter by certified mail to Respondent advising that contamination was present on the property, that there were "possible violations of law for which you may be responsible," and that a Preliminary Contamination Assessment (PCA) must be filed within sixty days from the date of the letter. See Department Exhibit 6. Although a meeting of the parties was held on October 4, 2001, a PCA was never filed. 16. On April 27, 2006, March 12, 2007, and July 3, 2007, the Department issued Warning Letters to Respondent advising that an enforcement action would be initiated unless Respondent provided a SAR within a time certain. See Department Exhibits 7, 8, and 9. (The record is silent as to why no formal activity occurred between October 2001 and April 2006.) Exhibit 8 reflects that on November 21, 2006, "analysis results of sampling of one monitoring well were received by the Department." A meeting was later conducted by the parties on January 16, 2007, at which time Respondent agreed to "draft a suitable letter of [its] intentions with regard to conducting the required assessment and send it to the Department on or before January 31, 2007." There is no record of such a letter being sent. In August 2007, Respondent contracted with Florida Environmental Engineering, Inc., to perform a "limited site assessment report." In March 2008, that firm submitted to the Department a Preliminary Site Assessment Report (PSAR) See Department Exhibit 10. For this service, Respondent paid around $16,000.00. On March 21, 2008, the Department advised Respondent by letter that the PSAR was incomplete and that further information should be provided by April 30, 2008. See Department Exhibit 11. An Addendum to the PSAR was provided on May 5, 2008. See Department Exhibit 12. This report cost Respondent an additional $3,000.00. The PSAR indicated that contaminants (dichloroethene and trichloroethylene) in the water and soil on the property exceeded Department groundwater and soil cleanup target standards and levels. The report concluded, however, that "the discharge to the site is from an offsite source" (west of the property) and that "the property owner is no longer a responsible party." On August 27 and then again on October 22, 2008, the Department issued letters to Respondent advising that "there is not enough data to support the assumption that the discharge is offsite and the contamination is from an offsite source located west of the property." The Department reached this conclusion because, among other reasons, "[t]he contamination does not seem to be delineated towards the northern and southern portions of the site," "[t]here are no horizontal delineation wells to [the] north," the "iso contour maps provided appear to show the vertical delineation of the contamination but not horizontal delineation [of the plume]," "additional monitoring points need to be [added]," and "the onsite monitoring well, MW-2, shows a very high concentration of Perchloroethylene (PCE) at 81,000 ug/L [microgram per liter] and other contaminants, while the MW-1 does not exhibit groundwater contamination to that extent." See Department Exhibits 14 and 15. In plainer language, Respondent's report was deficient in that all contamination sources were not identified; it failed to delineate the horizontal and vertical extent of soil and groundwater contamination; and it failed to recommend a remedial action to clean up the contamination. The two letters advised that the site assessment was incomplete and that additional information described in the letters must be submitted by November 14, 2008. To date, Respondent has failed to submit the required information. According to Mr. Schuberg, to perform a study that would supply the additional information requested by the Department would cost him around $100,000.00, an amount he is unwilling to pay. More than 270 days has expired since a discharge was discovered on Respondent's property, and it has failed to submit a complete SAR, as described in Florida Administrative Code Rule 62-780.600(8). See also Table A, Fla. Admin. Code R. Ch. 62-780, which prescribes the specific time frame (within 270 days after the discharge is discovered) for submitting this report. The Department has incurred expenses in the amount of $1,500.00 while investigating this matter. See Department Exhibit 17. This amount is not disputed. As corrective action, the Department requests that within ninety days of the effective date of this Final Order, Respondent submit a complete SAR which addresses the deficiencies specified in the Department's August 27, 2008, letter. See Department Exhibit 14. To complete the SAR, additional soil and groundwater samples need to be collected to determine the vertical and horizontal extent of contamination, all source areas must be identified, and a remedial action must be developed to abate the contamination. Finally, the contaminated soil must be removed from the property so that it will no longer discharge into the groundwater. The Notice of Violation requests that upon approval of the SAR, Respondent "shall commence and complete in a timely fashion all further tasks" required by Florida Administrative Code Rule Chapter 62-780. These corrective actions are reasonable and are hereby approved. In calculating the penalty, Respondent has assessed a $500.00 administrative penalty for Respondent maintaining a stationary installation that is reasonably expected to be a source of water pollution without a permit. This is based upon a violation of Section 403.121(5), Florida Statutes, which makes it unlawful to not comply with a regulatory statute's requirement. Under Section 403.121(6), Florida Statutes, the Department has also assessed a $500.00 per day penalty against Respondent for failing to file a SAR for nineteen days, for a total of $9,500.00. When added to the $500.00 previously assessed, the total administrative penalty is $10,000.00, which is the maximum allowed in this type of proceeding. See § 403.121(2)(a), Fla. Stat. Throughout this process, Mr. Schuberg has contended that the responsibility for cleanup lies with the person or entity actually responsible for placing the drums and tub on the property in 1995. He says that the evidence clearly shows that Family Dry Cleaners is the responsible party. However, the Department and local authorities were never able to confirm who actually dumped the waste on the subject property. Although Mr. Schuberg says it will take "[i]n the hundreds of thousands of dollars" to clean up the site, the evidence shows that when he purchased the mortgage in 1998 and assumed ownership in 1999, he knew the property was contaminated. Mr. Schuberg further stated that because his consultant could never get "answers" from the Department, the consultant was instructed to stop work. However, Mr. Schuberg never contacted the Department to get clarification about what was required. At hearing, Mr. Schuberg also offered a lay opinion that his consultant's report filed in March 2008 proves that in 1995 the contents of the drums and tub were dumped on an offsite asphalt road adjacent to the property, surface water runoff then carried the chemical solvents onto his property, and the empty drums and tub were left in the parking lot. The Department's expert did not agree with this supposition, and there is no expert testimony to confirm the accuracy of this theory. Respondent has also contended that the property should be cleaned up with state funds. As pointed out by a Department witness, however, one problem is that the property does not meet the definition of a dry cleaner and thus cannot qualify for funds under that program. Then, too, a state-funded cleanup is a last resort which is used only after the Department has exhausted all enforcement remedies. Also, in this era of tight budgets, the Department has a finite amount of funds to use for this purpose, and is limited to cleaning up only a few sites per year. Finally, the responsible party must first acknowledge by affidavit that it lacks the necessary resources to clean up the property before the Department "may" seek cleanup funds. Respondent has not yet filed such an affidavit or admitted liability. In terms of mitigating evidence, Mr. Schuberg conceded that he has not done "a whole lot" to address the contamination problem since acquiring the property in 1999. In 2008, he did expend around $20,000.00 in having a PSAR and Addendum prepared for the Department. In all other respects, he steadfastly refuses to spend any more money on assessments or take responsibility for the cleanup since he believes that Family Dry Cleaners is the entity responsible for site rehabilitation.
