The Issue The issue presented for determination in this proceeding is whether the wasteload allocations set forth in respondent's interoffice memorandum dated September 8, 1977, constitute a rule subject to the procedural requirements of the Administrative Procedure Act, Chapter 120, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner, a municipal corporation, applied to the respondent for renewal of its permit to operate a sewage treatment plant. The respondent gave notice of its intent to deny said application on the ground that petitioner had not met the wasteload allocations established for the upper part of the Peace River Basin. A petition for a hearing on this denial was filed by petitioner pursuant to the provisions of Florida Statutes, 120.57(1), and a hearing was originally scheduled for May 11, 1978. At the commencement of this hearing, it became apparent that petitioner was also alleging that the wasteload allocations set forth in an interoffice memorandum dated September 8, 1977, constituted a rule within the meaning of Chapter 120, Florida Statutes, and therefore must be adopted pursuant to the provisions of said chapter. The respondent not being prepared to meet this allegation and the petitioner not having filed a petition pursuant to the provisions of Section 120.56, the scheduled hearing was continued and petitioner was granted leave to file a petition pursuant to Section 120.56 challenging the validity of the wasteload allocations as an invalid rule. Petitioner properly filed its petition for an administrative determination of the validity of a rule and the two petitions were consolidated for hearing purposes. The "rule" being challenged herein contains revised wasteload allocations for four municipalities in Polk and Hardee Counties. These four include Bartow, Ft. Meade, Bowling Green and Wauchula, each of which discharges effluent into the Upper Peace River Basin. As noted above, these allocations are set forth in an interoffice memorandum dated September 8, 1977, and were not adopted pursuant to the rulemaking provisions of Chapter 120, Florida Statutes. Wasteload allocations are derived from mathematical calculations fed into a scientific model. They are based upon information pertaining to the treatment plant, the type of effluent, the physical, chemical and biological characteristics of the receiving waters and the number and nature of other discharges to the receiving waters. In developing said allocations, the respondent relies upon information received from the applicant, as well as existing water quality data from the Environmental Protection Agency, United States Geological data, local programs and university studies. The purpose of developing wasteload allocations is to determine the chemical effect of the discharge upon the receiving body of water and to determine whether a certain volume of effluent treated to a specified degree will depress water quality below the standard established for a particular class of water. Wasteload allocations are calculated by the respondent for each individual discharger to determine whether a reduction in water quality will occur. When an application for a discharge permit is made to respondent, allocations for several dischargers in close proximity affecting the same portion of a body of water may be calculated at the same time, as was done in the September 8th memorandum. However, the other individual allocations become effective and applicable only when those dischargers seek a permit from the respondent. At that time, the allocation is revisited and recalculated based upon the most recent, available information and data. The wasteload allocations have applicability only when a facility seeks a permit to discharge effluents into surfaced waters. In the State of Florida, there are approximately 1,300 domestic and municipal sewage treatment plants and 230 industrial dischargers. A uniform wasteload allocation for 1,530 dischargers would be impossible and meaningless because each has its own unique characteristics based upon the type and method of discharge and the nature of the receiving body of water. Accordingly, the wasteload allocations are established by respondent on a case by case basis in the permitting process. Approximately 1.6 million dollars in capital expenditures will be necessitated in order for petitioner to comply with the wasteload allocations established by the respondent. There would also be increases in operating and management costs for new capital improvements. Alternative methods of sewage treatment may be undertaken by the petitioner.
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.
Findings Of Fact Proposed Project Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order. Sewage Treatment Plant (STP) The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill). There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation. Effluent Disposal System (Spray Irrigation System) Phase I of the effluent disposal system (spray irrigation system) is 3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules. Standing Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue. RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31). Proposed findings of fact 1-3 are unnecessary. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34). Proposed findings of fact 1-3 are unnecessary. COPIES FURNISHED: Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113 Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113 Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113 Karen English 3680 West Highway 318 Citra, FL 32113 Marilyn Nehring P. O. Box 481 Orange Lake, FL 32112 John Monsees 2400 NW 165 Street Citra, FL 32113 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues are whether the Consent Order entered into between the Department of Environmental Regulation (DER) and Kenneth Acre (Acre) is an appropriate settlement of the violations addressed therein and whether Acre is entitled to construction permit number IC35-190005 for an Industrial Waste Disposal Facility. The Bradys assert that the Consent Order is not a reasonable exercise of DER's enforcement discretion and that the permit should be denied.
Findings Of Fact Background Acre owns and operates an animal research facility in Eustis, Florida. Acre performs research trials on dogs using a USDA approved heartworm medication sold under the brand name of Heartguard, the chemical name of which is ivermectin. Acre is not in the business of testing or manufacturing new drugs. The Consent Order To handle the waste generated by the animals at the facility, Acre initially constructed a conventional septic tank system. Prior to construction, Acre contacted the Lake County health department to inquire about permitting and was told that he did not need a permit for his facility. With that information, he continued with the project. Subsequently, DER became aware of the facility and notified Acre that a DER industrial waste permit was required and that he should cease the discharge into the septic tank until such a permit was obtained. Acre complied with DER's instructions and plugged the septic tanks. Since the time the septic tanks were plugged, the waste has been collected by Roto Rooter on a periodic basis and disposed of offsite. Acre entered into a Consent Order with DER to resolve the alleged past violation for not obtaining a permit and paid of penalty of $600 as required by DER. The Consent Order is a reasonable and appropriate settlement of the violations alleged therein. The Disposal System Acre has applied for a permit to construct and operate an evapotranspiration disposal system to dispose of the waste from his facility on site. The proposed system is essentially a modified septic tank system using a lined drainfield to capture and hold the liquid waste, allowing it to transpire from the grass or otherwise evaporate into the atmosphere and preventing any discharge to groundwater. The waste will be discharged to a series of modified septic tanks which will provide treatment beyond that of a traditional septic tank system and will reduce the amount of total suspended solids. The first septic tank accepts the waste and provides initial treatment through natural settling of solids. The waste then passes through a filter device and travels by gravity flow to the second septic tank. From the second tank it flows through a second filter device and into a dosing tank. The dosing tank is basically a small holding basin with a pump that disperses the waste to the drainfield in incremental amounts. The dosing tank contains several float mechanisms which monitor the level of liquid in the tank. When the water level in the dosing tank reaches a certain level, one such float mechanism turns on the pump to transport the liquid to the drainfield. The waste is then pumped from the dosing tank through a closed pipe to one of two evapotranspiration cells where it is distributed through a number of perforated pipes. The Evapotranspiration Cells The perforated pipes are situated in a gravel bed approximately 24 inches in depth. On top of the gravel bed is a clay soil mix approximately 15 inches deep. The clay soil mix absorbs the liquid waste in the gravel bed by drawing it up through the process of capillarity. Once the liquid is in the upper clay soil layer, it is evaporated. Grass is planted on top of the soil mix as an additional method for dissipation of the waste. The liquid waste is absorbed by the roots of the grass and transpired through the grass leaves. The clay soil mix in the top layer of the system is relatively impervious. The impervious nature of the soil mix along with a three percent surface slope will prevent rain water from entering the evapotranspiration cells and impacting the effective operation of the system. The entire drainfield has a double liner: one PVC plastic liner and a 6" clay layer. These two liners will ensure that no discharge to groundwater will occur from the system. System Capacity It is estimated that the Acre facility will produce approximately 520 gallons per day (GPD) of waste to be handled by the system. The drainfield is designed to handle twice the volume that will be discharged by the Acre facility and is therefore more than adequate to assimilate the waste received into the system. The drainfield is composed of two independent cells so that loading of each cell will be rotated. Once one cell receives its maximum capacity, the loading of that cell will cease in order to allow that cell to assimilate the waste through evapotranspiration. In this manner, the first cell is permitted to "rest" while the second cell receives further loading from the dosing tank. Safety Features Although the proposed disposal system is innovative in design, it incorporates several safety features which will ensure that no overflow of waste will occur. First, a float mechanism in the dosing tank is designed to trigger an alarm in the event the water level in the dosing tank gets too high. If that occurs, the alarm provides a flashing light as well as a horn which will notify the operator of a problem. Once the float reaches this warning level, the system will automatically shut down, thus preventing further waste from entering the system. Second, each evapotranspiration cell is equipped with a similar device which will automatically close off the dosing tanks and prevent further discharge into the cells in the unlikely event the system were to become too saturated to accept further loading. Finally, the double lined drainfield provides an additional safety measure which will prevent any discharge to groundwater. The numerous permit conditions requiring periodic monitoring of water quantity and quality in the system itself as well as the groundwater in the vicinity of the system provide ample assurance that the system will not pose a threat to the state's water resources. Ivermectin Although the proposed system will not discharge to groundwater, DER required the applicant to determine the amount of ivermectin in the wastestream. Ivermectin binds tightly to soil and does not dissolve in water. A sample of the wastestream from the Acre facility was collected by Bionomics Laboratory, Inc., and analyzed by Analytical Development Corporation using the analytical procedure designed by Merck scientists. The results of this analysis show that the concentration of ivermectin in the Acre wastestream ranges from .6 to 6.1 parts per trillion (ppt). The publication submitted to the Department by Acre entitled, Chapter 11, "Environmental Aspects of Ivermectin Usage in Livestock: General Considerations" by Halley, Nessel and Lu, from William C. Campbell, Ivermectin and Abamectin, documents the results of studies designed to determine whether using ivermectin in animals would result in any harmful or undesirable effects on the environment through excretion in the feces. This publication indicates that: Ivermectin is relatively immobile in soil and will not readily translocate into groundwater. Ivermectin is rapidly decomposed by sunlight and therefore will not accumulate in soil when administered to livestock. Ivermectin has no effect on earthworms at a concentration in soil of 12 parts per million (ppm). (This concentration is approximately two million times higher than that of the Acre waste stream.) Aquatic organisms such as water fleas and fish are highly sensitive to ivermectin toxicity. However, ivermectin is not toxic to the most sensitive species, the Daphnia magna, at a concentration of 0.01 parts per billion (ppb). Ivermectin concentrations in cattle feedlot runoff was less than the no-effect level of 0.01 ppb for Daphnia magna and therefore should cause no adverse environmental effects in surface or subsurface waters. The highest concentration of ivermectin found in the Acre waste stream is 6.1 ppt (or .006 ppb), which is less than the 0.01 ppb non-toxic level for the most sensitive aquatic species. Based on the concentration of ivermectin found in the Acre waste stream and the fact that ivermectin binds tightly to soil, the discharge from the Acre facility would not cause any adverse environmental impact, even if it were discharged to groundwater. Bradys' case Bradys submitted no evidence to show that the Consent Order is not an appropriate settlement of the violations alleged therein. They submitted no evidence that the septic tanks were improperly plugged. Brady offered no expert testimony in support of their claim that the facility had caused an adverse impact to groundwater or that the proposed system would cause any threat to groundwater quality. Bradys apparent concern about standing surface water on their property during heavy rainfalls is not relevant to this proceeding. Their concern that the lining of the drainfield could leak is unsupported by competent evidence. Bradys learned immediately prior to hearing that DER had changed its position and intended to issue the permit. Their failure to present any relevant evidence that the Consent Order was insufficient or that the proposed facility would violate any applicable DER rules or criteria and their ill- prepared participation in the hearing was in part the result of DER's late change in position. Bradys' participation in this proceeding was not shown to be frivolous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order and therein: Ratify the terms of the Consent Order as reasonable. Grant Acre construction permit number IC35-190005 for an Industrial Waste Disposal Facility, subject to the special conditions set forth in DER Exhibit 1. RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1992. APPENDIX TO RECOMMENDED ORDER CASE NOS. 91-2608, 92-0958 AND 92-0959 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Bradys 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6 & 7(8) and 15(10). 2. Proposed findings of fact 1-5, 16, 27, 28, 31, 36-42, 44, 46-49, 51, 52, 54, 57-59, 61, and 62 are subordinate to the facts actually found in the Recommended Order. 3. Proposed findings of fact 8, 10-14, 17, 19-21, 26, 29, 30, 32, 33, 35, 43, 53, 55, and 56 are irrelevant. Proposed findings of fact 9, 18, 22-25, 45, and 50 are unnecessary. Proposed findings of fact 34 and 60 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents, Acre and DER Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-44(1-44). Proposed findings of fact 45 and 46 are unsupported by the competent and substantial evidence. COPIES FURNISHED: Carlyn H. Kowalsky, Attorney at Law Bogin, Munns & Munns 250 North Orange Avenue 11th Floor-P.O. Box 2807 Orlando, FL 32802 Douglas MacLaughlin, Attorney at Law Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Martha Hunter Formella Attorney at Law FOLEY & LARDNER Post Office Box 2193 Orlando, FL 32802-2193 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether Petitioner should be granted a water pollution operation permit for the Bennett Road Sewage Treatment Facility under Chapter 403, Florida Statutes.
Findings Of Fact Petitioner owns and operates a sewage treatment plant known as the Bennett Road Sewage Treatment Facility in Orlando, Florida. The plant was originally built in the 1950's and its method of treatment has been modified and improved over the years. At the present time, the plant serves about 60 percent of the sewage treatment needs of the city. The sewage is first treated for the removal of biological compounds by means of trickling filters, followed by chemical treatment for removal of BOD, suspended solids, and phosphorus. In the latter process, aluminum sulfate is used, together with a polymer to assist in forming larger particles for more rapid settlement. These processes are followed by final settling, clorination and discharge through an outfall pipe approximately five miles to the Crane Strand Creek and thence to the Little Econlockhatchee River (Little Econ) which meets the Big Econlockhatchee River approximately twelve miles downstream and flows into the St. Johns River twenty- seven miles downstream. About 60 percent of the flow from Crane Strand Creek into the Little Econ is derived from the Bennett Road plant and there is no other significant source of pollutants from the remainder of the discharge. (Testimony of Jewett, Matthes, Petitioner's Composite Exhibits 1,2) In 1973, Respondent's predecessor, the State Department of Air and Water Pollution Control, issued a temporary operation permit to Petitioner, subject to certain conditions, for the Bennett Road plant. The permit was effective until June 1, 1976, "or sooner pursuant to the permittee upgrading his facility to provide 90 percent treatment and obtaining an operation permit in accordance with the rules and regulations of the Department Of Pollution Control." On May 7, 1976, Petitioner submitted an application for an operation permit wherein it was stated that the facility would be abandoned as soon as the Orlando Easterly Regional Facilities were constructed with a new treatment plant to be located in the vicinity of Iron Bridge Road. Respondent's manager of the St. Johns River District advised Petitioner by letter of July 21, 1976, of the Department's intent to deny the application for an operating permit. The reasons given were that (1) available data was insufficient to show sustained secondary treatment as defined in Chapter 403, Florida Statutes, and Chapter 17- 3, Florida Administrative Code; and (2) the facility's discharge caused violation of Section 17-3.09(3), F.A.C. The latter provision establishes one of the criteria for classification of Class III waters and provides generally that the concentration of dissolved oxygen in all such surface waters shall not average less than 5 mg/l in a twenty-four hour period and never less than 4 mg/l. Class III waters are designated in Rule 17-3.09 as "Recreation - propagation and management of fish and wildlife." In its above-mentioned letter, Respondent suggested that the Petitioner apply for a temporary operation permit. Petitioner chose to request an administrative hearing on the proposed denial and did so by petition filed herein on August 5, 1976. At the commencement of the hearing, the parties orally stipulated that Petitioner has been meeting the statutory and regulatory requirements as to secondary treatment so as to warrant withdrawal of Respondent's objection to granting the permit on that ground. The parties also agreed that the only matter remaining in issue is the question of whether Petitioner's discharge violates water quality criteria. (Petitioner's Exhibits 6,7) Petitioner began consideration of the need to replace or expand the Bennett Road plant about 1968. These plans have reached a stage where the Petitioner is now in the process of purchasing land and concluding a planning study required under federal law to construct a regional facility to service the eastern part of Orlando and a few of the northerly communities, including some in Seminole County. Such regionalization of sewage treatment facilities is encouraged by the federal government which provides 75 percent of the funding necessary for construction under Public Law 92-500 . It is anticipated that the proposed facility will be completed in 1980 at which time the Bennett Road plant will cease operations. The regional facility is to be located at Iron Bridge Road and its discharge would flow into the Little Econ several miles downstream of the present Bennett Road discharge. (Testimony of Matthes, Schneider, Petitioner's Composite Exhibit 2) Operation permits have been granted from 1971 to 1976 to a number of sewage treatment plants that will tie-in to the proposed regional facility. These permits were issued even though the discharge of most of the plants did not meet water quality standards. However, practically no secondary treatment plant can meet water quality standards in Central Florida without an extensive mathematical "modeling." These calculations made by Respondent are formulated from surveys of the body of water in question and result in what is termed "a waste load allocation." This term deals with a treatment standard that is computed to ascertain the assimilative capacity of a receiving body of water to take in pollutants from a particular source in order that water quality standards in terms of dissolved oxygen levels may be maintained. The waste load allocation is the standard which the treatment from the source must perform before it can be discharged. None of the above-mentioned plants nor the Bennett Road plant had been provided an assigned waste load allocation at the time of Respondent's adverse action on Petitioner's application. Neither had it been a past requirement of Respondent to require information concerning dissolved oxygen from an applicant in order to issue an operation permit. However, a preliminary survey of the Little Econ had been completed by Respondent by February 1976, and from this, a mathematical model was later computed based on chemical analysis of water samples taken from designated areas in that body of water. In the aforesaid permits that were granted, a clause provided that the plants would have to work with the City of Orlando in resolving discharge problems and cooperate in the achievement of a regional system. Although water quality criteria had not changed in recent years, they had not been enforced because Respondent had had insufficient background water data. At the time Petitioner's permit application was recommended for denial, the primary basis therefor was the fact that the Bennett Road plant had not then reached 90 percent treatment capability over a sustained period. The question of water quality was incidental in view of the fact that that office did not then have the final determination of water quality as evidenced by the intensive survey of the Little Econ and the final math modeling. (Testimony of Jewett, Davenport; Petitioner's Exhibit 4) By interoffice memorandums from the Respondent's Director of the Division of Environmental Permitting to district and subdistrict managers, dated January 28 and April 13, 1976, Subject: Temporary Operating Permits, the said managers were instructed that no operating permits should be issued for any source not achieving secondary treatment of its wastes or not meeting water quality standards. In such cases, only temporary operating permits were to be issued. Further, it was stated in the April 13 memorandum that enforcement action would be initiated against municipal facilities if they were either not achieving 90 percent removal Of BOD and suspended solids or not meeting water quality requirements, and had either (1) not applied for a federal grant, (2) was not following up to ensure receipt of the grant, or (3) had received a federal grant but was not expeditiously accomplishing the grant requirements. It was stipulated at the hearing that the memorandums had not been promulgated as rules by Respondent under Chapter 120, F.S. (Respondent's Exhibits 1, 2, Stipulation) Although the Little Econ is a highly degraded body of water, upstream of the Bennett Road discharge point it has a dissolved oxygen level of over 6 mg/l. After mixture with the Bennett Road discharge, the level drops to about 2 1/2 mg/l. Based upon the intensive survey taken by the Respondent in 1976, it was determined that water quality violations existed below the Bennett Road plant's discharge point but not above that point. It was further determined that the Bennett Road facility was contributing about 89 percent of the oxygen demanding substances in the system. In fact, the dissolved oxygen levels downstream from the Bennett Road discharge reached as low as one milligram per liter at several points. They ranged from that level up to approximately four and one-half milligrams per liter throughout the entire 27 miles of the system. The foregoing was the conclusion of Respondent's environmental specialist based on field data taken on August 30, 1976, at a time of the day when the dissolved oxygen levels would be at their highest. However, the drop in dissolved oxygen level to an even greater extent at certain points occurs in Respondent's mathematical model prediction that does not take into account any discharge from the Bennett Road plant. In fact, in such a "no discharge" situation, Respondent's prediction is that the dissolved oxygen level at points immediately following several control structures in the waters will produce an even greater drop than with the Bennett Road discharge taken into consideration. Although the control structures do not affect the actual oxygen demand on the system, they do increase the residence time of the water and permit substances to settle out. However, when the water flows over the dam, it creates reaeration that increases the oxygen level again. Therefore, although the control structures aggravate the problem, the Bennett Road discharge is in turn further aggravating the situation because some of the pollutants continue downstream. Part of the problem is due to the effect of deposits already on the bottom of the system and it is unknown to what extent they would be eliminated if the Bennett Road facility were taken out of the system. Although it is not anticipated that there would be a great rise in dissolved oxygen levels if the Bennett Road plant discharge were to be discontinued, Respondent's experts are of the opinion that there would be a definite increase in dissolved oxygen levels overall. Further, the field data and model predictions were based on high flow conditions but the 89 percent figure for pollutants from the Bennett Road facility was based on a low flow condition where it would be of more significance. Although the field data showed that at no point in the 27 mile course did the dissolved oxygen level of the water reach state standards of 5.0 milligrams per liter dissolved oxygen for Class III waters, the model prediction with no discharge from the Bennett Road facility shows that the dissolved oxygen level still would not meet state standards under high flow conditions. Under low flow conditions, though, the dissolved oxygen level without discharge from the Bennett Road plant would reach the state standards roughly halfway down the system. High flow conditions are more representative of an average of dissolved oxygen level during the year than under low flow conditions. The Bennett Road plant contributes approximately 60 percent of the total water flow reaching the St. Johns River. Even if the plant were to achieve advanced waste treatment standards, it still would not meet water quality standards. No evidence was presented as to the possibility of Petitioner using alternative methods of waste disposal, such as deep well injection, land irrigation, or the use of lakes and ponds. In fact, no discharge from the Bennett Road plant could be such as to raise the entire stream to meet the state requirement of 5.0 milligram per liter dissolved oxygen. (Testimony of Sawicki, Davenport, Armstrong, Horvath, Brown, Petitioner's Composite Exhibit 2, Respondent's Exhibit 3) An interoffice memorandum of Respondent's Grants section, dated October 28, 1976, pointed out that enforcement action had been shown to be a "great motivator in the area of bringing awareness to governmental agencies of their responsibilities in the field of pollution abatement." The memorandum sought compliance investigations of the various governmental entities within the area where the proposed regional sewage treatment system for East Orlando was to be undertaken, with recommendations that enforcement action be taken in the case of any violations of state standards. The memorandum further stated that enforcement action was already underway against the City of Orlando. The author of the memorandum denied that it was an attempt to force Respondent to proceed more vigorously with the regional system. (Testimony of Schneider, Petitioner's Exhibit 5) The Orange County Pollution Control Board requires variances from its rule that no treated effluent shall be discharged into the surface waters of the county. The Bennett Road plant operates under such a variance and at the present time is meeting county standards for sewage treatment. On May 19, 1976, the Orange County Assistant Pollution Control Director advised Respondent that the Bennett Road plant was meeting current state performance requirements and recommended approval of the operation permit. Although the county maintains records of the Little Econ River at various points, it has not used a mathematical model to determine whether the Bennett Road plant causes water quality violations. (Testimony of Sawicki, Petitioner's Exhibit 3)
Recommendation That the application of Petitioner City of Orlando, Florida for a water pollution operation permit for the Bennett Road sewage treatment facility be denied. DONE and ENTERED this 25th day of May, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Circle East Montgomery Building Tallahassee, Florida Gretchen R. H. Vose, Esquire Assistant City Attorney 16 South Magnolia Avenue Post Office Box 793 Orlando, Florida 32802 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION CITY OF ORLANDO, FLORIDA, Petitioner, vs. CASE NO. 76-1573 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether the alleged violation exists and, if so, whether orders for corrective action should be made final against respondents or either of them?
Findings Of Fact On October 17, 1984, Sunshine acquired from R & F what had been a filling station at the corner of U.S. Highway 98 and Laurie Avenue in Bay County, Florida. The old gas pumps had been moved some time before October 17, 1984. Only loose pipe connections leading to the underground storage tanks remained. The deed K & F executed in favor of Sunshine made no mention of these tanks. Respondent's Exhibit No. 1. Sunshine later contracted with Jake Walters, who began construction the following April to convert the site into a convenience store with gas pumps. On January 25, 1985, long before bringing any petroleum product onto the property, Jake Walters' construction foreman, John Kenneth Barnes, began taking up the two-foot slab of concrete that overlay K & F's underground storage tanks. The ground underneath the concrete smelled of gasoline. James Guris, who was overseeing the job for Sunshine, ordered work stopped and told Harold Millis, Sunshine's vice-president for real estate and construction, about the feel and smell of the soil. When Mr. Millis learned of the situation, he decided that DER should be notified. Because by then it was too late in the day to reach DER, Jim Guris called DER's office in Panama City on the following Monday, January 28, 1985. He spoke to DER's Grady Swann, who told him to file a discharge notification form with DER. Mr. Swann said removal of the underground tanks could go forward. Before removing the storage tanks, Mr. Barnes, or somebody at his direction, measured the depth of the tanks with a stick to determine how deep to dig. In this way two or three inches of gasoline were discovered in the bottom of each tank. Even though workmen secured a pump and pumped gasoline from each underground tank (into a 500-gallon tank mounted on a truck), they were unable to pump the tanks completely dry. In each of the three underground tanks, about a half inch of gasoline remained. With a crane and lifting rigs, they raised the tanks in an upright position, without spilling any gasoline. Except inside where the half inch of gasoline stood, the tanks and appurtenant pipes and tubing were dry. Mr. Guris ordered pressure tests done on the tanks, each a cylinder some five feet in diameter. Two of the tanks passed this test, but the third failed. That tank had a hole approximately one quarter inch in diameter a little left of center, about half way up one end of the tank. Groundwater on the site came within four and a half or five feet of the surface in early February of 1985. Because it contains less than 10,000 parts per million total dissolved solids, it is properly classified as G-II. A marine clay separates the surficial aquifer from the Floridan, but the surficial aquifer recharges the Floridan. Northeast of where the storage tanks were dug up and 300 to 350 feet way a two-inch well 390 feet deep supplies water from the Floridan aquifer to three households. Nobody has detected any odor or taste of gasoline in water from those wells. Grady Swann took soil samples on site on February 8 and again on February 26, 1985. On his first visit, he noticed no sheen on the surface of the water standing in the area excavated around the old tanks, smelled no odor emanating from the standing water and did not take a sample. On his second visit, he did notice evidence of groundwater contamination and took water as well as soil samples. Mr. Swann returned on March 11, 1986, with Kenneth L. Busen and Mike Wilson of DER's Operation Response Team and used a power augur to put in temporary wells from which additional water samples were taken. These tests confirmed suspicions that the old gas tanks had leaked and revealed groundwater contamination attributable to gasoline including, in some samples, more than 1,000 times the allowable concentration of benzene. Gasoline seeping through soil leaves residual hydrocarbons which contaminate percolating rain or other groundwater moving through the same soil. Petitioner's Exhibit No. 6 depicts the probable initial configuration of the plume of hydrocarbons in the vicinity of the old tanks. Contamination is moving down gradient to the northeast, spreading out but growing more dilute. The steps called for by the proposed corrective orders are a reasonable way to mitigate environmental damage.
The Issue The issue for consideration in this case is whether the Department of Environmental Protection should issue a permit to Sarasota Bay Hotel, Inc., to modify and expand an existing marina facility associated with an existing adjacent hotel, based on reasonable assurances from the applicant that the proposed project satisfies the applicable statutory and rule criteria.
Findings Of Fact At all times pertinent to the issues herein, the Department of Environmental Protection (Department) was the state agency in Florida responsible for the review of environmental resource permit applications and for the regulation of water pollution in specified waters of the state. SBH is a Florida corporation and the general partner of Hotel Associates of Sarasota, Limited (Hotel Associates), the owner of the property in question. The complex at issue is composed of the Hyatt Hotel and certain submerged land underlying the proposed project. SBH is the authorized agency for Hotel Associates for the purpose of obtaining the permit in issue. Petitioners are associations of condominium owners whose properties lie adjacent and to the west of the site in question. The parties stipulated that all Petitioners had standing in this proceeding. The site at issue, owned by Hotel Associates, consists of a portion of the submerged bottoms within a sea- walled, rectangular-shaped, man-made basin which runs in a north-south direction west of U.S. Highway 41 in Sarasota. It is connected by a narrowed channel to Sarasota Bay at its southern end. Hotel Associates owns approximately the northern one-third of the basin, and Petitioners own approximately the western one-half of the southern two-thirds of the basin. Petitioners' property is not covered in the proposed permit. The remaining portion of the basin, comprised of the eastern one-half of the southern two-thirds, is owned by an entity which is not a party to this action, and that portion of the bottom also is not covered by the proposed permit. However, in order for boat traffic to reach the property in issue, the boats must traverse the southern two- thirds of the basin. Both Petitioners and the unconnected third owner maintain existing finger piers within their respective portions of the basin outside the portion in issue. The basin in which the marina in question is located is classified as a Class III water body and is connected to Sarasota Bay, which is a Class III Outstanding Florida Water. Sarasota Bay is located approximately twelve hundred feet from the head of the basin and approximately eight hundred feet from the southern property line of the basin. As of the date of the hearing, the applicant, SBH, operated a permitted marina facility within the perimeter of the property in issue. This permit was issued years ago after the fact; that is, after the marina had already been constructed. As it currently exists, the marina is made up of perimeter docks which adjoin the northern and eastern sides of the basin and includes eight finger piers which provide ten to fifteen slips. In addition, a perimeter dock extends around an existing restaurant which sits on pilings over in the northeast end of the basin. Repairs and modifications were made to the facility under then-existing exemptions in 1995. These included the replacement of numerous copper, chromium, and arsenic (CCA) treated pilings and the re-decking of existing walkways and finger piers with CCA-treated wood. At the present time, seven of the finger-pier slips are under lease to a commercial charter fleet, Chitwood Charters, and one slip located along the perimeter dock is leased to a dive boat operation, Scuba Quest. At least one other finger-pier slip has a boat docked at it for an extended period. This boat is owned by Charles Githler, president of SBH. The remaining finger-pier and perimeter slips are ordinarily used on a transient basis by guests of the Hyatt Hotel and the restaurant. The existing facility, including the finger piers slips and the perimeter slips, contains approximately 6,700 square feet of docking space and is designed to accommodate between twenty to thirty boats, depending upon the length of the boats. On occasion, however, as many as 40 to 60 boats have been docked at the facility. At times, when demand increases, the larger slips have been subdivided to allow up to four boats to be stern-moored per slip. Even more boats have been docked at the facility for boat shows by the use of stern mooring or "rafting," which calls for boats to be moored tied together, side by side, out from the docks. By application dated May 18, 1999, and received by the Department's Tampa District office on June 16, 1999, SBH sought to obtain from the Department a permit to modify and expand its existing marina facility. It proposed to expand the existing approximately 6,700 square feet of dock space to approximately 7,000 square feet, thereby creating a marina with 32 designated slips. Conditions to issuance of the permit, agreed to by the applicant, include a limitation on the number of boats which may be moored at the facility at any time and the addition of storm water treatment capability to the existing storm water drainage system. SBH also agreed to reduce the terminal end of the middle pier from 900 to 400 square feet. SBH also agreed to accept the imposition of several other permit conditions required by the Department, and to offset any impacts on wildlife and water quality as a result of the operation of the permitted facility. In addition to requiring that all long-term slip leases incorporate prohibitions against live-aboards and dockside boat maintenance, these conditions include the following: Overboard discharges of trash, human or animal waste, or fuel shall not occur at the docks. Sewage pump-out service shall be available at the marina facility. * * * 18. Fish cleaning stations, boat repair facilities and refueling facilities are not allowed. 20. There shall be no fueling or fueling facilities at the facility. * * * 28. The shoreline enhancement indicated on Attachment A shall be implemented within 30 days. * * * 30. The permittee shall perform water quality monitoring within the basin at the locations indicated on Attachment A semiannually (January and July of each year) for a period of 5 years. * * * All piles shall be constructed of concrete with exception of 18 mooring piles identified in permit submittals. This permit authorizes the mooring (temporarily or permanently) of a maximum of [32] watercraft at the subject facility. A harbormaster must be designated and maintained at the subject facility. In order to be in compliance with this permit, the ”OARS Ultra-Urban" hydrocarbon adsorbent insert, or Department approved equal, must be installed within the catch basin inlets as shown on the approved drawings. At a minimum, the hydrocarbon adsorbent material shall be replaced and maintained in accordance with manufacturer's instructions. More frequent inspections and replacement of the filtration media may be required, depending on local conditions and results of the required water quality monitoring. * * * The permittee/grantee/lessee shall ensure that: In order to provide protection to manatees during the operation of this facility, permanent manatee information and/or awareness sign(s) will be installed and maintained to increase boater awareness of the presence of manatees, and of the need to minimize the threat of boats to these animals. SBH has also agreed to replace existing CCA-treated wood decking with concrete and fiberglass decking and to replace approximately 80 existing CCA-treated wood pilings with concrete pilings. Based on its analysis of the permit application and the supporting documentation submitted therewith, the Department, on March 2, 2000, entered a Notice of Intent to issue the permit for this project. Shortly thereafter, on March 25, 2000, after obtaining a minimal extension of time to file, the Petitioners filed a Petition for Administrative Hearing opposing the issuance of the proposed permit. Departmental decisions on water quality permits such as that in issue here are dependent upon the applicant satisfying the Department's requirements in several identified areas. These include the impact of the project on water quality; impact of the project on the public health, safety, and welfare; impact of the project on the conservation of fish and wildlife, including threatened or endangered species; impact of the project on navigation, the flow of water, erosion and shoaling; impact of the project on the immediate fishing, recreational values and marine productivity; impact of the project on archeological resources; impact of the project on the current condition and relative value of functions currently performed by areas to be affected; whether the project is permanent or temporary; and a balancing of the criteria, cumulative impacts, and secondary impacts. Addressing each of these in turn, it is clear that the current quality of the water within the existing marina is below established standards. Respondents admit that Petitioner has shown that the existing marina operation has diminished water quality conditions and created an environment that has potential adverse impacts to the fish and wildlife which frequent the basin as well as some of the neighboring property owners. This is not to say that these impacts were envisioned when the basin was constructed. However, other than as they relate to fish and wildlife and to water quality, the problems created by the marina do not relate to most permit criteria. The Respondent's experts calculate that due to its configuration and location, the basin naturally flushes approximately every 14.75 days. This is an inadequate time period to fully disperse any pollutants found in the basis. As a result of the inadequate flushing and the continuing use of the basin as a marina, there are resulting impacts to the water quality surrounding the existing facilities. Mr. Armstrong, Petitioner's water quality expert, indicated the project as proposed would lengthen even further the flushing time because of the addition of new boats and, to a lesser degree, the additional pilings and dock structure. These additions would, he contends, result in additional obstructions to water movement and cause a resultant increase in flushing time. While flushing is not a requirement of the permit, it has a bearing on water quality which is a consideration. Petitioners also argue that the mitigation measures proposed in the permit are inadequate and attack the qualifications of Mr. Cooper, the Department's storm water engineer. They point out alleged errors in Cooper's analysis and cite Mr. Armstrong, an individual with significant experience in water quality monitoring and analysis, to support their other witnesses' conclusions that more boats will increase the risk of hydrocarbon pollution from gasoline and diesel engines. Petitioners urge that the increased contamination, when coupled with the slow flushing action, would tend to settle down to where the pollutants enter the water - in the basin. Since it is clear these impacts would exist and continue even were the pending project not constructed, the issue, then, is whether the proposed project will worsen these environmental impacts. Respondents' authorities calculate they would not. In fact, it would appear the proposed changes called for in the permit, the removal of CCA-treated wood and its replacement with concrete piling and decking and the installation of storm water treatment apparatus, would reduce the adverse impacts to water quality within the basin and, in fact, improve it. It is so found. An issue is raised in the evidence as to the actual number of boats which can effectively use the marina at any one time. SBH contends the present configuration calls for between twenty to thirty boats. Evidence also shows that at times, during boat shows for example, many more boats are accommodated therein through "rafting." Even if the facility is expanded by the most significant number of slips, there is no concrete evidence there would be a significantly increased usage. The current usage is normally well below capacity. Modifications proposed under the pending permit could add as many as ten to fifteen additional slips. The Department has considered it significant that SBH has agreed to limit the number of boats that can be docked in this marina, even after modification. Unfortunately, no specific figure has been given for this limit, and, therefore, it cannot be shown exactly how much long-term water quality benefit can be expected. Nonetheless, it is a reasonable conclusion to draw, as the Department has done, that if the number of boats is limited to a figure at or even slightly higher that that which is currently experienced, a long-term benefit can be expected with the implementation of the other mitigation conditions. This benefit currently cannot be quantified, however. What can be established, and all parties agree, is that the basin currently does not meet water quality standards for copper and dissolved oxygen. The proposed permit addresses the issue of dissolved oxygen by requiring SBH to follow best management practices in the operation of the marina; to treat storm water discharge which enters the marina; and to provide a sewage pump-out station at the marina which would prevent the discharge of sewage into the water. The issue of the water's copper level is addressed by the removal of the CCA-treated pilings and decking and their replacement with concrete and fiberglass; the treatment of the storm-water discharge before its discharge into the basin; and the hiring of a harbor master to ensure that the prohibition against hull scraping at the basin is complied with. A restriction on the number of boats allowed into the marina at any one time would also treat the copper problem by reducing the exposure to anti-fouling paint containing copper. This is a condition of the permit. It is important to note that under existing statutory and rule exemptions, SBH could repair or replace the existing dock structure without the need for a permit. However, the issuance of a permit which permits modification and a slight expansion of the facility will prohibit the replacement of the existing CCA-treated wood with CCA-treated wood. The concrete and fiberglass pilings and decking will not leach copper into the water and, in time, should result in a lower concentration of that substance in the water. Another consideration of the permitting authorities relates to the impact the project would have on public health, safety, and welfare. Petitioners expressed concern that an increase in the number of slips called for in the proposed project would cause an increase in the number of boats that utilize the basin. Currently, though there are a limited number of slips available, there is no limitation on the number of boats which may use the facility. A reasonable estimate of capacity, considering the configuration of the docks and slips and the permit limitations established, indicates that no more than thirty-two boats will be permitted to use the basin at any one time. If this limitation is followed, it is reasonable to expect an improvement in the water quality. Petitioners also express concern that an increase in the number of authorized boats using the marina will result in an increase in the number of boats traveling at excessive speeds in entering and exiting. No evidence was introduced in support of this theory, but, in any case, Respondents counter- hypothesize that the increase in allowed boats will result in an increase in long term lessors over transients, and suggest that long term users are more considerate than transients. Neither side presented any substantial evidence in support of its positions. The impact on the conservation of fish and wildlife is a mandated consideration by the agency. No evidence was presented by either side regarding the existence of fish and wildlife in the area, much less threatened species, other than manatees. To be sure, these noble creatures inhabit the marina at times in appreciable numbers. The threat to them, however, comes from boat strikes, and no evidence was presented as to the number of strikes caused by boats in the marina or its approaches or the seriousness of these strikes. The agency to which the review of impacts to manatees was left, the Florida Fish and Wildlife Conservation Commission (FWCC) opined that the permit cap of 32 boats would keep to a minimum the potential impact to manatees from this project. Any increase in the number of boats, and the minimal impact increase thereby, should, it was considered, be offset by compliance with permit conditions. This opinion was contradicted by Mr. Thompson, Petitioner's manatee expert, who argued against any increase of boat traffic in manatee areas. This position is not the policy of the Department and is not controlling here. Further, it would appear this expert did not consider any mitigation factors proposed by SBH, as the Department is required to do. Taken together, the weight of the evidence supports a finding that the expected impact of this project on fish and wildlife, including those threatened and endangered species, is minimal. Based on the evidence of record, it is found that the expected impact of this project on navigation, the flow of water, erosion, and shoaling in the vicinity is virtually non- existent. The only factor bearing on this issue is the number of boats which will use the facility and its approach. Permit conditions call for a limitation on the number of water craft which will use the facility to be permitted to a number lower than that which uses it, at times, under current conditions. The water is a dead-end harbor, with no through traffic. There is no evidence of either erosion or shoaling now. It would not likely increase. A reduction in traffic as would occur under the conditions imposed by the permit can do nothing but reduce the potential for propeller dredging by boat traffic and the water turbidity that would accompany such strikes. This would improve navigation slightly, and there should be no adverse impact to the flow of water. The evidence presented at hearing did not establish any negative impact on fishing or marine productivity in the vicinity of the proposed project, which is permanent in nature. By the same token, no adverse effect to significant historical or archaeological resources was shown by the evidence of record. The facility in issue is currently a commercial activity consisting of a docking facility and a restaurant. No evidence was introduced to show that the project proposed would have an adverse impact on the current condition and relative value of the current function. In fact, the evidence indicates that the facility would be improved. Though not raised by the evidence, it should be noted that Petitioners presented no evidence that their property values as adjacent property owners, would be adversely effected by this project. In balancing the criteria, cumulative impacts and secondary impacts of the proposed project on the immediate and surrounding area, it appears that the applicant has provided reasonable assurances that the project is not contrary to the public interest. The marina supports the hotel and restaurant which is on it. Adjoining property owners, the Petitioners, expressed concern that the modifications to the existing marina will result in a decrease in water quality in the basin; will increase the potential for fuel spills with their related short term discomforts and long term damages; and will increase the danger to the manatee population which periodically uses the basin. While they are entitled to the quiet enjoyment of their property, it is unreasonable for those who live on the water to expect that the benefits of living by the water would not carry with it the potential for some periodic discomfort created by waterfront activity. The weight of the evidence presented in this case indicates no significant cumulative adverse impacts from this project. To the contrary, the state of the evidence suggests an improvement in water quality and navigation in the basin and its approaches, and any secondary impacts resulting from the accomplishment of the project would be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order issuing to Sarasota Bay Hotel the requested permit to modify and expand the existing marina facility located adjacent to the existing Hyatt Hotel at 1000 Boulevard of the Arts in Sarasota, Florida. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2001. COPIES FURNISHED: Barbara B. Levin, Esquire Scott A. Haas, Esquire Abel, Band, Russell, Collier, Pitchford & Gordon 240 South Pineapple Avenue Sarasota, Florida 34236 Graig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Mark A. Hanson, Esquire Law Offices of Lobeck & Hanson, P.A. 2033 Main Street Suite 403 Sarasota, Florida 34237 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issues in this case are whether International Paper Company (IP) is entitled to National Pollutant Discharge Elimination System (NPDES) Permit No. FL0002526 issued by Department of Environmental Protection (Department) and whether the Department should approve Consent Order No. 08-0358, for the operation of IP’s paper mill in Cantonment, Escambia County, Florida.
Findings Of Fact The Department is the state agency authorized under Chapter 403, Florida Statutes (2008), to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. Perdido Bay is approximately 28 square miles in area. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. At the north end of Perdido Bay is a large tract of land owned by IP, known as the Rainwater Tract. The northern part of the tract is primarily fresh water wetlands. The southern part is a tidally-affected marsh. The natural features and hydrology of the fresh water wetlands have been substantially altered by agriculture, silviculture, clearing, ditching, and draining. Tee Lake and Wicker Lake are small lakes (approximately 50 acres in total surface area) within the tidal marsh of the Rainwater Tract. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to the lakes from Perdido Bay. Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. In 1989, the Department and Champion signed a Consent Order to address water quality violations in Elevenmile Creek. Pursuant to the Consent Order, Champion commissioned a comprehensive study of the Perdido Bay system that was undertaken by a team of scientists led by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies (“the Livingston studies"). Champion was granted variances from the water quality standards in Elevenmile Creek for iron, specific conductance, zinc, biological integrity, un-ionized ammonia, and dissolved oxygen (DO). In 2001, IP and Champion merged and Champion’s industrial wastewater permit and related authorizations were transferred to IP. In 2002, IP submitted a permit application to upgrade its wastewater treatment plant (WWTP) and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to the Rainwater Tract, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a reduction of biological oxygen demand (BOD) and TSS. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP, along with other process wastewater and become part of the effluent conveyed through the pipeline to the wetland tract. The effluent limits required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based, limiting the amount of pollutants that may be discharged for each ton of product that is produced. The proposed permit also imposes water quality-based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. The Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. A wetland pilot project was constructed in 1990 at the Cantonment mill into which effluent from the mill has been discharged. The flora and fauna of the pilot wetland project have been monitored to evaluate how they are affected by IP’s effluent. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silvicultural activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, it would be re-aerated and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged into the wetland would flow a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a somewhat shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter indicated that the effluent would move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be 0.6 inches. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline, berm, and control structures in the wetland tract, as originally proposed, were permitted by the Department through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. Petitioners did not challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge from Elevenmile Creek to the wetland tract. IP is given two years to complete construction activities and begin operation of the new facilities. At the end of the construction phase, least 25 percent of the effluent is to be diverted to the wetland tract. The volume of effluent diverted to the wetlands is to be increased another 25 percent every three months thereafter. Three years after issuance of the permit, 100 percent of the effluent would be discharged into the wetland tract and there would no longer be a discharge into Elevenmile Creek. The proposed Consent Order establishes interim effluent limits that would apply immediately upon the effective date of the Consent Order and continue during the two-year construction phase when the mill would continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12- month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply when 100 percent of the effluent is discharged into the wetland tract. IP is required by the Consent Order to submit quarterly reports of its progress toward compliance with the required corrective actions and deadlines. Project Changes After the issuance of the Final Order in 05-1609, IP modified its manufacturing process to eliminate the production of white paper. IP now produces brown paper for packaging material and “fluff” pulp used in such products as filters and diapers. IP’s new manufacturing processes uses substantially smaller amounts of bleach and other chemicals that must be treated and discharged. IP reduced its discharge of BOD components, salts that increase the specific conductance of the effluent, adsorbable organic halides, and ammonia. IP also reduced the odor associated with its discharge. In the findings that follow, the portion of the Rainwater Tract into which IP proposes to discharge and distribute its effluent will be referred to as the “effluent distribution system,” which is the term used by Dr. Nutter in his 2008 “White Paper” (IP Exhibit 23). The effluent distribution system includes the berms and other water control structures as well as all of the natural areas over which IP’s effluent will flow to Perdido Bay. Most of the existing ditches, sloughs, and depressions in the effluent distribution system are ephemeral, holding water only after heavy rainfall or during the wet season. Even the more frequently wetted features, other than Tee and Wicker Lakes, intermittently dry out. There is currently little connectivity among the small water bodies that would allow fish and other organisms to move across the site. Fish and other organisms within these water bodies are exposed to wide fluctuations in specific conductivity, pH, and DO. When the water bodies dry out, the minnows and other small fish die. New populations of fish enter these water bodies from Elevenmile Creek during high water conditions, or on the feet of water birds. IP's consultants conducted an extensive investigation and evaluation of animal and plant communities in the Rainwater Tract in coordination with scientists from the Department and the Florida Fish and Wildlife Conservation Commission. Among the habitats that were identified and mapped were some wet prairies, which are designated “S-2," or imperiled, in the Florida Natural Area Inventory. In these wet prairies are rare and endangered pitcher plants. IP modified the design of the proposed effluent distribution system to shorten the upper berms and remove 72.3 acres of S-2 habitat. The total area of the system was reduced from 1,484 acres to 1,381 acres. The proposed land management activities within the effluent distribution system are intended to achieve restoration of historic ecosystems, including the establishment and maintenance of tree species appropriate to the various water depths in the system, and the removal of exotic and invasive plant species. A functional assessment of the existing and projected habitats in the effluent distribution system was performed. The Department concluded that IP’s project would result in a six percent increase in overall wetland functional value within the system. That estimate accounts for the loss of some S-2 habitat, but does not include the benefits associated with IP’s conservation of S-2 habitat and other land forms outside of the effluent distribution system. IP proposes to place in protected conservation status 147 acres of wet prairie, 115 acres of seepage slope, and 72 acres of sand hill lands outside the effluent distribution system. The total area outside of the wetland distribution system that the Consent Order requires IP to perpetually protect and manage as conservation area is 1,188 acres. The Consent Order was modified to incorporate many of the wetland monitoring provisions that had previously been a part of the former experimental use of wetlands authorization. IP proposes to achieve compliance with all proposed water quality standards and permit limits by the end of the schedule established in the Consent Order, including the water quality standards for specific conductance, pH, turbidity, and DO, which IP had previously sought exceptions for pursuant to Florida Administrative Code Rule 62-660.300(1). Limitation of Factual Issues As explained in the Conclusions of Law, the doctrine of collateral estoppel bars the parties in these consolidated cases from re-litigating factual issues that were previously litigated by them in DOAH Case No. 05-1609. The Department’s Final Order of August 8, 2007, determined that IP had provided reasonable assurance that the NPDES permit, Consent Order, exception for the experimental use of wetlands, and variance were in compliance with all applicable statutes and rules, except for the following area: the evidence presented by IP was insufficient to demonstrate that IP’s wastewater effluent would not cause significant adverse impact to the biological community of the wetland tract, including Tee and Wicker Lakes. Following a number of motions and extensive argument on the subject of what factual issues raised by Petitioners are proper for litigation in this new proceeding, an Order was issued on June 2, 2009, that limited the case to two general factual issues: Whether the revised Consent Order and proposed permit are valid with respect to the effects of the proposed discharge on the wetland system, including Tee and Wicker Lakes, and with respect to any modifications to the effluent distribution and treatment functions of the wetland system following the Final Order issued in DOAH Case No. 05- 1609; and Whether the December 2007 report of the Livingston team demonstrates that the WQBELS are inadequate to prevent water quality violations in Perdido Bay. Petitioners’ Disputes Petitioners’ proposed recommended orders include arguments that are barred by collateral estoppel. For example, Jacqueline Lane restates her opinions about physical and chemical processes that would occur if IP’s effluent is discharged into the wetlands, despite the fact that some of these opinions were rejected in DOAH Case No. 05-1609. Dr. Lane believes that IP’s effluent would cause adverse impacts from high water temperatures resulting from color in IP’s effluent. There is already color in the waters of the effluent distribution system under background conditions. The increased amount of shading from the trees that IP is planting in the effluent distribution system would tend to lower water temperatures. Peak summer water temperatures would probably be lowered by the effluent. Petitioners evidence was insufficient to show that the organisms that comprise the biological community of the effluent distribution system cannot tolerate the expected range of temperatures. Dr. Lane also contends that the BOD in IP's effluent would deplete DO in the wetlands and Tee and Wicker Lakes. Her contention, however, is not based on new data about the effluent or changes in the design of the effluent distribution system. There is a natural, wide fluctuation in DO in the wetlands of the effluent distribution system because DO is affected by numerous factors, including temperature, salinity, atmospheric pressure, turbulence, and surface water aeration. There are seasonal changes in DO levels, with higher levels in colder temperatures. There is also a daily cycle of DO, with higher levels occurring during the day and lower levels at night. It is typical for DO levels in wetlands to fall below the Class III water quality standard for DO, which is five milligrams per liter (mg/l). An anaerobic zone in the water column is beneficial for wetland functions. DO levels in the water bodies of the effluent distribution system currently range from a high of 11 to 12 mg/l to a low approaching zero. The principal factor that determines DO concentrations within a wetland is sediment oxygen demand (SOD). SOD refers to the depletion of oxygen from biological responses (respiration) as well as oxidation-reduction reactions within the sediment. The naturally occurring BOD in a wetland is large because of the amount of organic material. The BOD associated with IP’s effluent would be a tiny fraction of the naturally occurring BOD in the effluent distribution system and would be masked by the effect of the SOD. It was estimated that the BOD associated with IP's effluent would represent only about .00000000001 percent of the background BOD, and would have an immeasurable effect. Dr. Pruitt’s testimony about oxygen dynamics in a wetland showed that IP’s effluent should not cause a measurable decrease in DO levels within the effluent distribution system, including Tee and Wicker Lakes. FOPB and James Lane assert that only 200 acres of the effluent distribution system would be inundated by IP’s effluent, so that the alleged assimilation or buffering of the chemical constituents of the effluent would not occur. That assertion misconstrues the record evidence. About 200 acres of the effluent distribution system would be permanently inundated behind the four berms. However, IP proposes to use the entire 1,381-acre system for effluent distribution. The modifications to the berms and the 72-acre reduction in the size of the effluent distribution system would not have a material effect on the assimilative capacity of system. The residence time and travel time of the effluent in the system, for example, would not be materially affected. Variability in topography within the effluent distribution system and in rainfall would affect water depths in the system. The variability in topography, including the creation of some deeper pools, would contribute to plant and animal diversity and overall biological productivity within the system. The pH of the effluent is not expected to change the pH in the effluent distribution system because of natural buffering in the soils. The specific conductance (saltiness) of IP’s effluent is not high enough to adversely affect the biological community in the fresh water wetlands of the effluent distribution system. IP is already close to maintaining compliance with the water quality standard for specific conductance and would be in full compliance by the end of the compliance schedule established in the proposed Consent Order. After the 2007 conversion to brown paper manufacturing, IP’s effluent has shown no toxicity. The effluent has passed the chronic toxicity test, which analyzes the potential for toxicity from the whole effluent, including any toxicity arising from additive or synergistic effects, on sensitive test organisms. Dr. Lane points out that the limits for BOD and TSS in the proposed NPDES permit exceed the limits established by Department rule for discharges of municipal wastewater into wetlands. However, paper mill BOD is more recalcitrant in the environment than municipal wastewater BOD and less “bio- available” in the processes that can lower DO. In addition, the regulatory limits for municipal wastewater are technology-based, representing “secondary treatment.” The secondary treatment technology is not applicable to IP’s wastewater. Sampling in the pilot wetland at the paper mill revealed a diversity of macroinvertebrates, including predator species, and other aquatic organisms. Macroinvertebrates are a good measure of the health of a water body because of their fundamental role in the food web and because they are generally sensitive to pollutants. Petitioners contend that the pilot wetland at the paper mill is not a good model for the effect of the IP’s effluent in the wetland distribution system, primarily because of the small amount of effluent that has been applied to the pilot wetland. Although the utility of the pilot wetland data is diminished in this respect, it is not eliminated. The health of the biological community in the pilot wetland contributes to IP’s demonstration of reasonable assurance that the biological community in the effluent distribution system would not be adversely affected. The effluent would not have a significant effect on the salinity of Tee and Wicker Lakes. Under current conditions, the lakes have a salinity of less than one part per thousand 25 percent of the time, less than 10 parts per thousand 53 percent of the time, and greater than 10 parts per thousand 22 percent of the time. In comparison, marine waters have a salinity of 2.7 parts per thousand. IP’s effluent would not affect the lower end of the salinity range for Tee and Wicker Lakes, and would cause only a minor decrease in the higher range. That minor decrease should not adversely affect the biota in Tee and Wicker Lakes or interfere with their nursery functions. The proposed hydrologic loading rate of the effluent amounts to an average of six-tenths of an inch over the area of effluent distribution system. The addition of IP’s effluent to the wetlands of the effluent distribution system and the creation of permanent pools would allow for permanent fish populations and would increase the opportunity for fish and other organisms to move across the effluent distribution system. Biological diversity and productivity is likely to be increased in the effluent distribution system. By improving fish habitat, the site would attract wading birds and other predatory birds. Although the site would not be open to public use (with the exception of Tee and Wicker Lakes), recreational opportunities could be provided by special permission for guided tours, educational programs, and university research. Even if public access were confined to Tee and Wicker Lakes, that would not be a reduction in public use as compared to the existing situation. IP’s discharge, including its discharges subject to the interim limits established in the Consent Order, would not interfere with the designated uses of the Class III receiving waters, which are the propagation and maintenance of a healthy, well-balanced population of fish and wildlife. The wetlands of the effluent distribution system are the “receiving waters” for IP’s discharge. The proposed project would not be unreasonably destructive to the receiving waters, which would involve a substantial alteration in community structure and function, including the loss of sensitive taxa and their replacement with pollution-tolerant taxa. The proposed WQBELs would maintain the productivity in Tee and Wicker Lakes. There would be no loss of the habitat values or nursery functions of the lakes which are important to recreational and commercial fish species. IP has no reasonable, alternative means of disposing of its wastewater other than by discharging it into waters of the state. IP has demonstrated a need to meet interim limits for a period of time necessary to complete the construction of its alternative waste disposal system. The interim limits and schedule for coming into full compliance with all water quality standards, established in the proposed Consent Order, are reasonable. The proposed project is important and beneficial to the public health, safety, and welfare because (1) economic benefits would accrue to the local and regional economy from the operation of IP’s paper mill, (2) Elevenmile Creek would be set on a course of recovery, (3) the wetlands of the effluent distribution system would become a site of greater biological diversity and productivity, (4) the environmental health of Perdido Bay would be improved, (5) the Department’s decades-long enforcement action against IP would be concluded, (6) substantial areas of important habitat would be set aside for permanent protection, and (7) the effluent distribution system would yield important information on a multitude of scientific topics that were debated by these parties. The proposed project would not adversely affect the conservation of fish or wildlife or their habitats. The proposed project would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. There is no Surface Water Improvement and Management Plan applicable to IP’s proposed discharge. The preponderance of the record evidence establishes reasonable assurance that IP’s proposed project would comply with all applicable laws and that the Consent Order establishes reasonable terms and conditions to resolve the Department’s enforcement action against IP for past violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order granting NPDES Permit No. FL0002526 and approving Consent Order No. 08-0358. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner L. C. Prevatt is the owner and operator of the Riverview Speed Wash, Inc., a coin operated laundry which has been in existence for over ten years. The facility has twelve top load washers, four double load washers, one triple load washer and seven gas dryers. It is open from 7:00 a.m. to 9:00 p.m., seven days a week. The facility is located in a shopping center in space which petitioner rents on a month-by-month basis. The facility utilizes a 0.0075 mgd waste treatment plant with effluent disposal to a county-owned drainage ditch which is connected and discharges to the Alafia River approximately 0.6 miles south of the facility. On or about May 29, 1981, petitioner submitted an application for a temporary operation permit for his Riverview laundry facility. Temporary operation permits are issued by the DER when a facility is not currently meeting State water quality standards and the applicant needs or desires a period of time to bring the facility up to the applicable standards. Here, the petitioner stated on his application that no upgrade of the waste treatment facility was planned. The application further stated that the facility would be connected to an area wide regional waste treatment system when that system became available. After numerous requests for further information from the applicant and various inspections of the facility, the DER issued its notice of intent to deny petitioner's application for a temporary operation permit. Reasons for the intended denial included failure to provide requested background water quality information, failure to provide a proposed water quality standards compliance schedule, failure to provide reasonable assurance that a municipal sewer would be available as an alternative means of disposal and improper and deficient operation and maintenance of the facility. Numerous inspections of the petitioner's facility by personnel from the DER and the Hillsborough County Environmental Protection Commission revealed that the facility was not functional in terms of operating correctly and that the design of the plant was inadequate to meet State water quality standards. Specifically, these inspections revealed that the chlorination equipment was not operational, that the trickling filter was not operational, that the removal rates for BOD and suspended solids were consistently and significantly less than the State standard of 90 percent, that the discharge and effluent were of a milky color and would not meet the State standards for turbidity and color, that the water quality of the drainage ditch was extremely low and that the water quality results were actually worse after going through the existing system. It was determined that the discharge was degrading the quality of the receiving waters and that, even if the petitioner's operational and maintenance problems were solved, the design of the facility is not adequate to assure future compliance with State standards. Petitioner admits that his facility does not currently meet State water quality standards. In mitigation, it is contended that many other laundries in the area also do not meet State standards, that it is not economically feasible to redesign the facility to attain compliance, that he has no land available upon which to discharge effluent and that he would be willing to install a sand filter and did have the permission of the manager (not the owner) of the property to discharge effluent into the parking lot drain ponds. No written evidence of this agreement was adduced and there was no demonstration that such runoff ponds would be able to hold and/or treat effluent from the petitioner's facility. There was also no evidence offered to demonstrate that a municipal or regional sewer system would be available in the near future to serve the laundry facility.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for a temporary operation permit for Riverview Speed Wash, Inc. be DENIED. Respectfully submitted and entered this 7th day of September, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1982. COPIES FURNISHED: L. C. Prevatt Post Office Box 998 Gibsonton, Florida 33534 William W. Deane, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 95-SE-0371 may be recovered from Petitioner pursuant to Chapter 376, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376, Florida Statutes. At all times material to the instant case, Petitioner has been the owner of a fenced and gated parcel of land, approximately one acre in size, located at 960 Old South Dixie Highway in an industrial area of Jupiter, Florida (Petitioner's Property or Property). Before the incident which is the subject of the instant proceeding (Incident), Petitioner had used the Property to store equipment used in his asphalt paving business. Petitioner removed the equipment from the property in December of 1989, when he moved his business operations to a new location in west Jupiter. Underground tanks that Petitioner had installed on the Property to store diesel fuel used in his asphalt paving business were also removed when Petitioner's business relocated. Groundwater tests were conducted in May of 1990, after the tanks were removed. The results of these tests revealed the absence of any pollutants. Following the relocation of his business to west Jupiter, Petitioner began renting the Property to Schmidt's Auto Body (Schmidt's), an automobile repair business located next to the Property. The rental agreement (which was not in writing), at Petitioner's insistence, included the requirement that Schmidt's maintain the Property and keep it clean. Schmidt's used the Property to store vehicles that needed to be repaired or towed elsewhere. To allow it easier access to Petitioner's Property, Schmidt's built a gate in the fence separating its business from the Property. After Petitioner relinquished possession of the Property to Schmidt's, the Property was used by others, acting without Petitioner's approval or authorization, as a dumping ground for abandoned personal property. Petitioner is now, and has been at all times material to the instant case, legally blind and in failing health. Due to his blindness and poor health, Petitioner had been, prior to the Incident (and he has remained), unable to personally inspect the Property to ascertain Schmidt's compliance with the rental agreement's requirement that it maintain the Property and keep it clean. Petitioner's wife passed by the Property each month when she visited Schmidt's to collect rent for Petitioner, but she did not closely inspect the Property on these visits. There is no evidence that Petitioner was made aware, by his wife or anyone else, that his Property (which was fenced) was being used as a dumping ground. On September 8, 1995, the day of the Incident, the Jupiter area experienced an unusually heavy rain event and resultant flooding and ponding of water in some spots, including locations on and around Petitioner's Property. Depressions in portions of Petitioner's Property contained standing water, although the entire property was not flooded. At approximately 10:30 a.m. on September 8, 1995, Ann Meador, an Emergency Response Coordinator with the Department, received a report (from Palm Beach County Risk Management) of two 55-gallon drums leaking asphalt sealant on Petitioner's Property. Meador was initially told that the "situation was being handled" by Palm Beach County Risk Management, but she was later advised otherwise. Meador arrived on the scene at approximately 3:00 p.m. that same day (September 8, 1995) and served as the Department's on-scene coordinator. Upon arriving on the scene, Meador observed two 55-gallon drums which had unsecured lids and were rusted and in otherwise poor condition. One of the drums was labelled "asphalt sealant.“ (Although Petitioner was in the asphalt paving business, he did not use asphalt sealant for any of the work he performed.) Petitioner was not in any way responsible for the drums being on the Property. In fact, at no time prior to the Incident, did he even know that the drums were there. The heavy rains had caused the contents of the drums (product) to overflow. Approximately 85 gallons of product, mixed with water, had spilled onto the ground. Stormwater runoff had carried some of the product to a depression in an unpaved road adjacent to the Property and near a storm drain. Meador reasonably believed that the drums and the spilled product should be removed immediately to avoid the possibility that, with additional rainfall, the product would spread to other areas. After having learned that Petitioner was the owner of the property on which the drums were located and having obtained his telephone number, Meador called the number to inform Petitioner of the leaking drums on his Property. The person to whom Meador spoke identified himself as Petitioner. He told Meador, upon being advised that the drums and product needed to be removed from the Property, that he was not "going to do anything." Following this telephone conversation, Meador hired OHM Remediation Services, Inc. (OHM), a qualified emergency response contractor with whom the Department had a contract, to remove the drums and product (as well as the water and soil the product had contaminated) from the Property and to properly dispose of these items. OHM, in turn, contracted with Magnum Environmental Services (Magnum) to perform these services (as a subcontractor). Magnum personnel responded to the scene and performed these removal and disposal services. To determine the most appropriate means of disposal, samples of the product were collected and analyzed. The analysis revealed that the product was a petroleum derivative. Magnum properly disposed of the drums based upon the results of its analysis. The Department paid OHM $12,033.03 from the Water Quality Assurance Trust Fund for the services Magnum performed (as OHM's subcontractor). In requesting that these services be performed and in paying $12,033.03 for the performance of these services, the Department acted reasonably and prudently. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $461.91 in connection with its response to the Incident. The total amount the Department paid from the Water Quality Assurance Trust Fund to have the leaking drums and product (as well as the water and soil the product had contaminated) properly removed from Petitioner's Property and disposed of was $12,497.94. 2/ The Department is requesting that Petitioner reimburse the Department for these costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that Petitioner is not liable for the costs the Department incurred in responding to Incident Number 95-SE-0371. DONE AND ENTERED this 28th day of August, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1998.
The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
