The Issue The issue to be determined by this Recommended Order of Dismissal is whether the Petitioners have standing to challenge a Settlement Agreement in OGC File No. 07-0177 (the Settlement Agreement), entered into by the Department of Environmental Protection (DEP) and Respondents, Allied Universal Corporation (Allied) and Chem-Tex Supply Corporation (Chem-Tex), for the assessment and remediation of contamination at a bleach- manufacturing and chlorine-repackaging facility in St. Lucie County.
Findings Of Fact The Parties The Conservation Alliance is a Florida, not-for-profit corporation in good standing, incorporated in 1985, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. It has approximately 200 members, at least 100 of which reside in St. Lucie County. The Conservation Alliance was formed to “protect the water, soil, air, native flora and fauna, upon which all the earth?s creatures depend for survival.” Indian Riverkeeper is a Florida, not-for-profit corporation in good standing, incorporated in 1999, with its corporate offices currently located at 1182 Southeast Mendavia Avenue, Port St. Lucie, Florida. It has approximately 150 members. The parties agreed, by stipulation, that Indian Riverkeeper has 25 or more members that live in St. Lucie County. Indian Riverkeeper was formed “to enforce local, state and federal environmental laws through citizen suits, [and] scientific and educational programs to increase awareness of citizens? standing to compel government to enforce laws to protect the environment.” The DEP is an agency of the State of Florida having jurisdiction to control and prohibit pollution of air and water, pursuant to chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP took the enforcement action that culminated in the entry of the Settlement Agreement that is the subject of this proceeding. Allied owns and operates the Facility, and is responsible for the remediation of contamination resulting from activities at the Facility. Chem-Tex owns the real property on which the Facility is located. Entry of the Settlement Agreement On June 21, 2010, the DEP, Allied, and Chem-Tex entered into the Settlement Agreement that is the subject of this proceeding. The Settlement Agreement required Allied and Chem- Tex to pay a monetary penalty to the DEP, and to identify, prevent, and remediate contamination on the Facility. The Settlement Agreement required publication of a notice of the Settlement Agreement, which provided that persons whose substantial interests are or will be affected could, within 45 days of the date of publication, petition for a hearing to challenge the proposed Settlement Agreement. The notice was published on June 28, 2010. Thus, the last date for filing a timely petition was August 12, 2010. On August 12, 2010, Petitioners electronically filed their Petition with the DEP. Allegations of Standing Petitioners alleged standing to challenge the Settlement Agreement based on the following, as set forth in the Petition: The Conservation Alliance is a conservation group based in Fort Pierce, Florida, organized for the purpose of protection of the State?s natural resources, including drinking water, and the rivers and other waters in St. Lucie County. Indian Riverkeeper is a citizen?s group, organized for the purpose of protecting and restoring the State?s natural resources within St. Lucie County. Members of both the Conservation Alliance and Indian Riverkeeper own real property within St. Lucie County. Substantial amounts of hazardous waste have contaminated the Facility, which has caused significant environmental harm to the groundwater underlying the site and resulted in off-site surface water discharges. Contamination is spreading to adjacent properties which pump groundwater for potable water supply and agricultural irrigation purposes. St. Lucie County has proposed a major drinking water wellfield within one-quarter mile of the Facility, which use is endangered by the existing groundwater contamination. Petitioners have a substantial interest in ensuring that Allied and Chem-Tex comply with requirements established by the Resource Conservation and Recovery Act. The DEP has executed a Settlement Agreement that will become valid and destroy the DEP?s right to seek additional penalties and enforcement relating to Allied?s violations. Allied?s past violations have created substantial plumes of contaminants in the groundwater system underlying its property, which if not remediated may migrate off-site and contaminate deeper zones of the surficial aquifer system. Standing -- Effects of Contamination Petitioners alleged that deficiencies in the Settlement Agreement may affect their substantial interests due to the effects of the contamination on the interests of their members, who use the potable water and other resources affected by the contamination. The only testimony offered at the hearing as to the use of the lands in the vicinity of the Facility was offered by Anthony Brady, the current president of the Conservation Alliance, who knew of no members of the Conservation Alliance that used any lands within five miles of the Facility. There was no testimony or other evidence offered regarding the use of lands in the vicinity of the Facility by any member of Indian Riverkeeper. As to the allegations that deficiencies in the Settlement Agreement would affect “potable water and irrigation wells located in the immediate vicinity of the facility,” there was no evidence that any member of the Conservation Alliance or Indian Riverkeeper received service from those wells. Mr. Brady and Elaine Souza receive water service from unidentified public water supply sources in St. Lucie County. Kevin Stinnette receives water from a source other than the Fort Pierce Utilities Authority. There was no allegation or evidence that the sources of their water were threatened by the contamination -- regardless of whether any such threat could be proven on the merits. There was no competent, substantial, non-hearsay evidence as to a particular source of potable water for any member of either the Conservation Alliance or Indian Riverkeeper that would “connect the dots” between the general allegations of groundwater contamination at the Facility, and the potable water supply of any member. For example, Petitioners alleged that their members own property in St. Lucie County, and that contamination is spreading from the Facility to adjacent properties which pump groundwater for potable water supply and agricultural irrigation purposes and, that if not remediated, such contamination may impact deeper zones of the surficial aquifer system and affect potable water and irrigation wells in the vicinity of the Facility. However, Petitioners utterly failed to prove that any of their members use, own, or have any interest in the adjacent properties that are in jeopardy of being contaminated, or that they are served by any of the potable water or irrigation wells alleged to be threatened by the contamination. The undersigned -- having accepted the allegations in the Petition of adverse effects of the contamination at the Facility and the deficiencies of the Settlement Agreement, having accepted and applied the testimony and evidence taken at the hearing, and without going to the merits of the Settlement Agreement -- is unable to find, based on the record of this proceeding, that Petitioners? substantial rights could be affected by the Settlement Agreement. Thus, Petitioners failed to produce the quantum of admissible, non-hearsay evidence necessary to demonstrate that they or their members will suffer an injury in fact which is of sufficient immediacy to entitle them to a hearing to challenge the Settlement Agreement. Standing -- Effects on Recreational Use In addition to the foregoing, Petitioners assert in their Proposed Recommended Order that “[a] substantial number of [their] members use, recreate, and protect the waters of St. Lucie County,” and that those members could be adversely affected by exposure to contamination due to the proximity of the Facility “to nearby navigable water bodies, fisheries, rivers and streams from which Conservation Alliance and Indian Riverkeeper members are provided with potable water and recreation.” The Conservation Alliance holds an Annual “Party in the Park” at the Fort Pierce Inlet State Park, and has monthly meetings at the Savannas State Preserve Education Center. There was no allegation or evidence as to how either of those locations were or could be affected by contamination from the Facility or by the Settlement Agreement. Indian Riverkeeper holds an annual “Mullet Run Festival” in Fort Pierce, and “other quarterly events that are sort of like our meetings” at locations in Fort Pierce and Jensen Beach, Florida. The venues for the Indian Riverkeeper events, beyond the cities in which they were held, were not identified. There was no allegation or evidence as to how those particular locations were or could be affected by contamination from the Facility or by the Settlement Agreement. Mr. Brady understood that one of Petitioners? members, George Jones, fishes in the C-24 canal. Mr. Brady has not personally fished in the C-24 canal for 25 years. Mr. Brady otherwise provided no evidence of the extent to which he or any members of the Conservation Alliance used or enjoyed the waters in or around St. Lucie County. Mr. Stinnette has recreated in various water bodies that are tributaries of the Indian River Lagoon system. He indicated that he had engaged in recreational activities in and on the waters of St. Lucie County with “dozens” of people over the past 16 years, some of whom were members of the Conservation Alliance or Indian Riverkeeper. There was no evidence offered as to how many of those persons were members of either of the Petitioners, as opposed to friends that have visited his house to fish off of the dock, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones told him that he kayaked in the waters of St. Lucie County. However, as to the recreational activities of other Conservation Alliance members, Mr. Stinnette testified that “I don't know, I don't keep up with their day-to-day activities to that extent.” Although Mr. Jones testified at the hearing, he provided no information as to the nature or extent of his recreational uses of the waters of St. Lucie County. The only evidence of Mr. Jones? recreational use of the waters of St. Lucie County is the hearsay testimony of Mr. Brady and Mr. Stinnette, which is not sufficient to support a finding of fact as to Mr. Jones? use. The only finding that can be made as to the recreational use of the waters of St. Lucie County by current members of the Conservation Alliance and Indian Riverkeeper is limited to a single member, Mr. Stinnette, who is a member of both organizations. Based thereon, Petitioners failed to prove that a substantial number of their members make any recreational or other use of the waters of St. Lucie County. Thus, Petitioners failed to produce the quantum of admissible, non- hearsay evidence necessary to demonstrate that they or their members will suffer an injury in fact to their substantial rights of use, recreation, and protection of the waters of St. Lucie County which is of sufficient immediacy to entitle them to a hearing to challenge the Settlement Agreement. Standing -- Other Issues Petitioners, and primarily Indian Riverkeeper, allege that their substantial interests are affected by the inadequacy of the penalty assessed in the Settlement Agreement, and by the purported preclusion of their right to “bring[] a citizen suit against Allied and Chem-Tex for their chemical spills . . . for violation of the Clean Water Act if it were not for the settlement negotiations taking place between Allied and the FDEP.” As to the issue of the inadequacy of the monetary penalty, the undersigned finds that the penalty to be assessed and paid by Respondents to the DEP has no effect on the substantial interests of Petitioners or their members. In that regard, the economic component of the Settlement Agreement does not result in any of Petitioner?s members being exposed to contaminants, or in any restriction on their recreational or other uses of the lands or waters of St. Lucie County. Therefore, the penalty amount does not result in an injury in fact which is of sufficient immediacy to entitle Petitioners to a section 120.57 hearing. Cf. Dillard & Assocs. Consulting Eng'rs v. Fla. Dep't of Envtl. Prot., 893 So. 2d 702 (Fla. 1st DCA 2005) (finding no standing on the part of a DOT contractor to challenge an administrative penalty levied by the DEP against DOT, even when the penalty may, at some time in the future, be assessed against the contractor). As to the injury resulting from the alleged restriction on Petitioners? rights to bring a federal lawsuit under the Clean Water Act, there was no evidence of any current intent on the part of Petitioners to bring such a lawsuit, nor was there any evidence, beyond the bare assertion, of any such restriction or preclusion on bringing a suit. Thus, Petitioners failed to prove any injury in fact which is of sufficient immediacy to entitle Petitioners to a section 120.57 hearing. Furthermore, the effect of agency action on the ability of a person to bring an independent action in another forum is not an injury of the type or nature that this proceeding is designed to protect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Environmental Protection, enter a final order dismissing the Petition for Formal Administrative Proceedings. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of May, 2013.
The Issue The issues determined in this proceeding are whether Respondent engaged in construction contracting without a license as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Parties Petitioner is the state agency responsible for regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. Petitioner has jurisdiction over the unlicensed practice of construction contracting pursuant to sections 455.227, 455.228, and 489.13. At all times material to this matter, Respondent was the owner of Advanced Connections, LLC. Neither he nor his company is licensed, registered, or certified to perform construction contracting services in Florida. Respondent holds only certification to perform backflow preventer testing. At the heart of this case is whether Respondent may perform backflow preventer repair without a license, certification, or registration. Facts Related to Work Performed It is undisputed that Respondent performed repair of backflow preventers for customers in Tallahassee, Florida. On July 25, 2014, Respondent performed a backflow prevention assembly test on two existing backflow preventers at Old Enrichment Center located at 2344 Lake Bradford Road, Tallahassee, Florida 32301. Respondent provided an invoice to Old Enrichment Center following the backflow test, which described the work performed as follows: “I was able to repair both units and they are Functioning [sic] properly. I had to replace one additional part on, AS #10896, the #2 check cage was cracked. Thank you For [sic] your business. Don’t forget to cover the backflows.” The invoice reflected that Respondent was compensated $343.00 for the worked performed and materials. On August 20, 2014, Respondent performed a backflow test on an existing backflow preventer for Li-Ping Zhang at a property located at 2765 West Hannon Hill Drive, Tallahassee, Florida 32309. Respondent provided an invoice to the customer describing the outcome of the test, and he provided an estimate for repair as follows: Invoice: Thank For this opportunity to serve you. The unit is failing. The #1 check valve is leaking across it. That means it is not holding pressure. The Manufacture of flowmatic no longer makes parts for your unit. But my supplier does have a repair kit available. Due to the Fact are no longer made for your device it may be better to have the unit replaced with a Wilkins 975-XL. Please See Quote * * * Quote for repair: Part: Complete Rubber Kit-$30.00 Labor: This unit may not be repairable due to the fact that there is a limited supply of parts. If there is damage to the #1 Check. I will not be able to repair the unit. If that happens I can return the parts but a labor charge would still remain. Please call with any questions. Thank you. (Quoted text from invoice without correction of grammar.) Respondent ultimately performed the repair on August 25, 2014. The invoice issued to Li-Ping Zhang reflected service provided as “[t]he repair was a success. The unit is Passing [sic]. Paid Cash $115.00 8.25.14 — signed Ian.” Both invoices include the Respondent’s company name, Advanced Connections, LLC. There was no evidence presented of financial or property harm caused by Respondent’s actions. On or about February 2, 2015, Petitioner received a complaint from City of Tallahassee filed against Respondent for his repair of backflow preventers in Tallahassee, Florida. Petitioner commenced an investigation into Respondent’s actions through its unlicensed activity investigation unit. At the conclusion of the investigation, Petitioner filed an Administrative Complaint alleging Respondent engaged in construction contracting without a license. Respondent disagrees with Petitioner and argues that he is eligible for an exemption under section 489.103(9), commonly known as the “handyman” exemption. Life-Safety Matter Respondent’s eligibility for the exemption hinges upon whether repair of a backflow preventer is considered a life- safety matter. The Florida Building Code provides minimum standards for building construction to “safeguard the public health, safety and general welfare.” See § 101.3, Florida Building Code, Building. The Florida Building Code, Plumbing, applies to “the installation, alteration, repair and replacement of plumbing systems, including fixtures, fittings and appurtenances where connected to a water or sewage system . . . .” See § 101.4.3, Florida Building Code, Building. The plumbing chapter of the Florida Building Code defines a backflow preventer as a device or means to prevent backflow of water from flowing from one system into the potable water system.2/ A potable water supply system shall be maintained in such a manner so as to prevent contamination from non-potable liquids, solids, or gases being introduced into the potable water supply through cross-connections or any other piping connections to the system. § 608.1 Building Code, Plumbing. To further explain the purpose of backflow preventers, Petitioner offered Frank Hagen as a plumbing expert. Mr. Hagen, who has 42 years of plumbing experience, has been licensed in Florida since 1981 and is also licensed in Georgia. He holds a certification in backflow preventer testing (issued by the University of Florida TREEO Center) and backflow preventer repair. Mr. Hagen has regularly conducted on-the-job plumbing training for 36 years. Mr. Hagen was accepted as a plumbing expert. Mr. Hagen testified that a backflow preventer is a life-safety device. He explained that this reference is accepted throughout the plumbing industry because the backflow preventer protects water systems by preventing chemicals and poisons from entering the public water system. Mr. Hagen provided examples of potential outcomes if a backflow preventer fails (e.g., three children died as a result of drinking water from a water hose where poison in the sprinkler system contaminated the water). Mr. Hagen also testified that only a licensed plumber is authorized to perform backflow repairs. Mr. Hagen’s testimony is credible. John Sowerby, P.E., a licensed professional engineer for 35 years, who previously worked in the Department of Environmental Protection’s (DEP) Source of Drinking and Water Program, also testified regarding the nature of backflow preventers. He testified that backflow preventers protect public health because they prevent contamination of potable water systems (i.e., water that is satisfactory for human consumption). Mr. Sowerby’s testimony is also found to be credible. Respondent’s testimony that a backflow preventer is not a life-safety fixture, is not supported by the evidence. Respondent testified that backflow preventers are “plumbing fixtures” that are installed between the public water supply line and the private water supply line. Respondent also testified that if a backflow preventer fails, it could cause contamination of the public water supply and public health would be at risk. More importantly, the applicable building codes and the testimony of Mr. Hagen and Mr. Sowerby establish that backflow preventers prevent contamination of public water supply and protect public health. Given that backflow preventers safeguard public health by protecting the public water supply, they involve life-safety matters. The Department has incurred investigative costs in the amount of $415.95 related to this matter. Ultimate Findings of Fact Respondent’s repair of a backflow preventer on a water service line is a life-safety matter and as a result, Respondent is not eligible for an exemption under section 489.103(9). The evidence is clear and convincing that Respondent’s repair of a backflow preventer at the two properties referenced herein constituted the practice of construction contracting without a license. As a result, Respondent is guilty of unlicensed contracting, as charged in Counts I and II of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: Finds Respondent guilty of unlicensed contracting in violation of section 489.13(1), as alleged in Counts I and II of the Amended Administrative Complaint; Imposes an administrative fine of $6,000 ($3,000 for each count); and Requires Mr. Tuttle to pay the Department’s investigative costs of $415.95. DONE AND ENTERED this 26th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 26th day of October, 2016.
Findings Of Fact Petitioner Jerry L. Seymour owns lot 220A in Pine Tree Estates, a parcel of slightly over one acre, approximately 140 feet by 330 feet, situated in Broward County, Florida. Petitioner's lot is substantially overgrown with vegetation, including swamp cabbage, myrtle, sawgrass, ferns, palmetto and cypress. The soil consists of cap rock, muck, sandy loam, humus and sand. On June 13, 1977, the day before the final hearing, standing water a few inches deep covered major portions of lot 220A, including the southern one-third and eastern edge of the lot. In short, lot 220A lies in a low, swampy area. The ground water level varies directly with rainfall. On June 13, 1977, the ground water was not quite as high as the crown of the road adjoining the lot. Rainfall in the area on June 12 or 13, 1977, if any, was not extraordinary. Historically, annual rainfall in Broward County has averaged 60 inches, but annual rainfall since 1970 has been below this average. According to petitioner's testimony, the water table has dropped a foot in the past year. After Petitioner's initial application for a permit for installation of a septic tank on lot 220A had been turned down, he filed an amended application in which he proposed to remove impervious materials from an area approximately 130 feet by 140 feet and to refill the excavation, to a height of 42 inches above the adjacent road, with soil of a kind that would facilitate drainage. In his letter denying petitioner's amended application, Mr. Hillyer, on behalf of respondent, wrote: Inasmuch as the lot in question does not comply with the above referenced code requirements we can not issue a septic tank permit at this time. However, if Mr. Seymour wishes to remove the muck in the area of the drainfield and fill the property as outlined on the survey submitted to the 42" above the crown of the road mentioned in your letter, this department will be in a position to re-evaluate this property as to whether or not a septic tank permit can be issued. Petitioner's amended application also indicated that a "Chromaglass Model CA-900 Aerobic Treatment Unit" together with a chlorinator and chlorine contact chamber would be installed, instead of a conventional septic tank; and that the installation would be in an absorption field of at least 300 square fee, and at a distance of at least 125 feet from the well petitioner proposed to drill on the lot. In addition, petitioner proposed to dredge a swale as a means of draining lot 220A. Petitioner also owns lot 220B in Pine Tree Estates, which lies immediately west of lot 220A, and shares a north-south boundary with lot 220A. The lots are about the same size and about equally swampy, although the soil in lot 220B is slightly less sandy. When petitioner's application for a permit to place a similar aerobic treatment unit on lot 220B was denied, he petitioned for an administrative hearing. The recommended order which resulted was accepted in evidence at the final hearing in this matter. That recommended order concludes: Wherefore, the Hearing Officer finds that if the planned drain field is installed on a 100' x 140' pad filled an additional 23 inches above its current pad level it will be 42 inches from the October, 1974 high water table measure, meeting the criteria established by law and I would recommend its approval. Jerry Seymour v. Broward County Health Department, State of Florida, No. 75-1059 (DOAH; October 10, 1975) No final order in Case No. 75-1059 was offered in evidence at the hearing in the present case.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for a permit for construction of a septic tank, with leave to petitioner to refile an application if changed circumstances warrant. DONE and ENTERED this 2nd day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Christopher B. Knox, Esquire Suite 302A, Medical Towers 303 Southeast 17th Street Ft. Lauderdale, Florida 33316 Mr. Howard L. Braynon, Esquire 5920 Arlington Expressway Post Office Box 241F Jacksonville, Florida 32231
Findings Of Fact Application 7500165 requested average withdrawal of water of 1,804,750 gallons per day from 4 wells located about a mile east of Highway 41 and a mile north of Apollo Beach. The four wells would be for irrigation of tomato crops on total acreage of 4 acres located in Hillsborough County (Exhibit 1, Testimony of Elsberry and Boatwright). Notice of hearing as to the application was published in a newspaper of general circulation in accordance with statute and rule (Exhibit 3). A letter of objection from Joseph S. Benham, Apollo Beach, Florida, dated November 19, 1975 was submitted to the Water Management District, wherein he expressed concern regarding water shortages and, although he does not seek to totally deny the application, is of the belief that the district must insure sufficient controls and management of irrigation activities so that resources are not wasted, water runoff to drainage ditches is eliminated and renewed justification is given each year for the withdrawal (Exhibit 2). A representative of the District staff established that there would be no violation of statutory or regulatory requirement for issuance of a consumptive water use permit in this case except as to the fact that potentiometric level of the applicant's property would be lowered below sea level as a result of withdrawal. It was agreed at the hearing that a period of thirty days should be granted both parties to formulate a stipulation as to control of runoff. An unsigned stipulation was received from the Water Management District by the hearing officer on March 1, 1976, which provided that the permit would be granted with the following stipulations: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expense install metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. (Testimony of Boatwright, Exhibit 4).
Recommendation That application 8500165 submitted by Elsberry and Elsberry, Inc. Route 2, Box 70 Ruskin, Florida, for a consumptive water use permit be granted with the conditions as follow: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expenseinstall metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. That the Board grant an exception to the provision of Rule 16J- 2.11(4)(e), F.A.C., for good cause shown. DONE and ENTERED this 15th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Elsberry & Elsberry, Inc. Route 2, Box 70 Ruskin, Florida
Findings Of Fact Tim Youngquist is a licensed water well contractor, holding Florida license #2172, and is principal of Youngquist Brothers, Inc. The South Florida Water Management District, operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code, is responsible for the permitting and regulation of nonexempt water well drilling within the District's geographical jurisdiction. Unless specifically exempted from permitting requirements, each well must be separately permitted prior to construction. Due to the unique characteristics of wells, well construction permits are issued separately for each individual well and are not issued on a site basis. The Respondent, in the summer of 1990, contracted with the City of Fort Myers, Florida, to construct twenty public water supply wells and eight monitoring wells, all located within the existing city well field site. The Respondent was responsible for compliance with all applicable permit requirements. On December 19, 1990, the Respondent obtained the appropriate city permit for the drilling operation, but did not at that time apply for or obtain any permits as required by the Petitioner. The City of Fort Myers permits wells in compliance with the Standard Plumbing Code, but does not have a well construction ordinance. The city permit does not substitute for the Petitioner's well construction permits. On April 9, 1990, the Petitioner received an inquiry from a representative of the Lee County Health Department as to whether the Respondent had obtained well construction permits from the Petitioner. At that time, there had been no application for the permits submitted to the Petitioner by the Respondent. On April 10, 1990, Don Douglas, Youngquist Brothers manager for the Fort Myers city wells project, contacted the Petitioner and inquired as to the method for obtaining permits for the well construction. Mr. Douglas was advised to immediately cease any well construction operations at the City of Fort Myers well field pending receipt of the appropriate permits. On April 11, 1991, Petitioner's staff inspected the City of Fort Myers well field site, and observed six newly- completed public supply wells on the site. Petitioner's staff again instructed Respondent's representative to cease any further activity. There is no evidence that, subsequent to the Petitioner's directions to cease operations at said site, any additional construction activities occurred. On April 16, 1991, Petitioner's staff again inspected the City of Fort Myers well field site, and observed three additional public supply wells on the site, two of which were surface-cased with the third well appearing to be completed. On May 23, 1991, a Notice of Violation (NOV) was issued to Youngquist citing the failure to obtain well construction permits for the seven completed public water supply wells and the failure to provide notice to the Petitioner 24 hours in advance of the placement of grout in the annular spaces of the seven wells. The Petitioner's staff determined that the extent of the two surface- cased wells construction did not prohibit appropriate inspection even though the wells would also require permitting. As stated in the NOV, the Petitioner sought a fine of $5,000 for the violations. Further, because the Petitioner's staff was first informed by the Respondent's representative that there were six wells completed on site when in fact there were nine, the NOV sought the imposition of a 20% penalty applied to the $5,000, and the suspension of Respondent's well drilling license. Subsequent to the issuance of the NOV, the Petitioner's staff met with Respondent's project manager to discuss the matter. At that time, it was determined that there actually were only six fully completed public water supply wells and three additional surface-cased but incomplete public water supply wells. The Petitioner dropped the proposed 20% penalty and suspension of Youngquist's license. However, subsequent to this discussion, the parties could not resolve the dispute and an Administrative Complaint was filed. 1/ Six individual well construction permits are required for the six completed public water supply wells located at the City of Fort Myers well field. The evidence establishes that the Respondent constructed and completed the six public water supply wells without obtaining the appropriate permits from the Petitioner. The failure to obtain the six permits constitutes six separate violations. The evidence establishes that, in completing the wells, the Respondent failed to notify the Petitioner 24 hours in advance of placement of grout in the annular spaces of the six completed wells. The failure to notify the Petitioner 24 hours in advance of placement of grout in the annular spaces of the six completed wells constitutes six separate violations. There is no evidence that, prior to initiation of the well construction activities and prior to the discovery of the violations by Petitioner's staff, the Respondent made any attempt to comply with the permitting requirements of the Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the South Florida Water Management District enter a Final Order imposing an administrative fine of $4,500.00 against Tim Youngquist. DONE and RECOMMENDED this 14th day of January, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 14th day of January, 1992.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: At all times material to the instant case, Respondent has owned and operated a water vending machine (Respondent's Machine) located at the Sunshine Key Resort on U.S. Highway 1 in Sunshine Key, Florida. On September 8, 1996, following the Department's receipt of a laboratory report, indicating that a previous sample of vended water taken from Respondent's Machine was "contaminated with coliform," Jose Padron, a Sanitation and Safety Specialist with the Department, and Armando Escoto, a Sanitation and Safety Supervisor (for Dade and Monroe Counties) with the Department, visited the location of Respondent's Machine to collect another sample for testing. During their visit, Padron and Escoto observed the following, as their written inspection report reflects: "area around machine filthy"; "self-closing door not working"; "water dispensing area filthy"; "water spout dirty with rust & mold"; "no permit posted"; and "no required consumer information posted." Based upon these observations, they prepared a "stop use" order directing Respondent "to withhold [the machine] from . . use subject to further instructions from an authorized agent of the Department of Agriculture and Consumer Services." The order contained the following "Notice to Responsible Management Official": NOTICE TO RESPONSIBLE MANAGEMENT OFFICIAL This STOP SALE, USE OR HOLD ORDER is EFFECTIVE IMMEDIATELY and is immediately appealable or enjoinable. An appeal may be instituted by filing a petition with the appropriate district court of appeal, S.120.59(3), S.120.68, Florida Statutes. The petition must be filed with the Division of Food Safety, 3125 Conner Boulevard, Room 279, Tallahassee, Florida 32399-1650 and a copy with the appropriate court of appeal, within 30 DAYS from the date this ORDER is filed with the Division of Food Safety at the above address. The appeal must be conducted in accordance with the Florida Rules of Appellate Procedure. An action for injunctive relief may be filed in the appropriate circuit court. WARNING: Removal of items ordered withheld from sale or use or the removal of the order and/or tags attached to such items is a violation and punishable under the law applicable. Padron and Escoto "red-tagged" Respondent's Machine (thereby rendering it inoperable) and posted on it the "stop use" order. The following day, September 9, 1996, Donald Epstein, Respondent's president, removed the "red tags" and "stop use" order from the machine. Padron returned to the location of Respondent's Machine on September 30, 1996. He noted that the "red tags" and "stop use" order that had been placed on the machine on September 8, 1996, had been removed and that the machine was "plugged in and back in business" in violation of the "stop use" order. He also observed that the machine's "water spout [was] dirty and rust[y]," the "machine [was] not cleaned and sanitized," and the "machine ha[d] no permit(s) posted." Based upon these observations, Padron prepared a second "stop use" order. He then "red-tagged" the machine again and posted on it the second "stop use" order. He also issued a Notice of Violation alleging that Respondent had violated Section 500.172, Florida Statutes, by virtue of its having "broken" the September 8, 1996, "stop use" order. Padron conducted a follow-up inspection of Respondent's Machine on October 28, 1996. He found that the machine had been "cleaned and sanitized." Accordingly, on November 11, 1996, he issued a Release Notice advising Respondent that the previously issued "stop use" orders had been vacated and that Respondent was free to put its machine back in service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding Respondent guilty of the violation of the Act alleged in the Administrative Complaint and fining Respondent $2,000.00 for having committed said violation. DONE AND ENTERED this 27th day of June, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997.
The Issue The issue to be resolved in this proceeding concerns whether the applicant, Craig Watson, has provided reasonable assurances in justification of the grant of an Industrial Waste Water Facility permit for a rotational grazing dairy to be located in Gilchrist County, Florida, in accordance with Section 403.087, Florida Statutes, and the applicable rules and policies of the Department of Environmental Protection. Specifically, it must be determined whether the applicant has provided reasonable assurances that the operation of the industrial waste water facility at issue will comply with the Department's ground water quality standards and minimum criteria embodied in its rules and relevant policy, including draft permit conditions governing the proposed zone of discharge for the project. It must be determined whether the ground water beyond the proposed zone of discharge will be contaminated in excess of relevant state standards and criteria and whether the water quality of the G-II aquifer beneath the site will be degraded. Concomitantly it must be decided whether the applicant has provided reasonable assurances that the proposed project will comply with the Department's effluent guidelines and policy for dairy operations as industrial waste water facilities, pursuant to the Department's policy enacted and implemented pursuant to its rules for granting and implementing industrial waste water facility permits, as they relate to dairy operations.
Findings Of Fact The Respondent Craig Watson has applied for an Industrial Waste Water Facility permit to authorize the construction and operation of an 850-cow, rotational grazing dairy, with accompanying dairy waste management system, to be located in Gilchrist County, Florida. The system would be characterized by ultimate spray application of waste effluent to pastures or "paddocks" located on a portion of the 511-acre farm owned by Mr. Watson. The rotational grazing method of dairy operation is designed to prevent the ground water quality violations frequently associated with traditional dairy operations. Traditional dairy operations are often characterized by intensive livestock use areas, which result in denuding of vegetation and consequent compacting of the soil, which prevents the effective plant root zone uptake method of treating dairy waste and waste water for prevention of ground water quality violations. Such intensive use areas are typically areas around central milking barns, central feeding and watering troughs, and other aspects of such operations which tend to concentrate cows in relatively small areas. The rotational grazing dairy attempts to avoid such problems by dividing a dairy farm's surface area into numerous pastures which cows can graze upon with constant and frequent rotation of cows between such pastures. This avoids overgrazing or denuding of the cover crop upon which cows graze, which is so necessary to proper treatment of wastes through root zone uptake. A rotational grazing dairy is designed to re-cycle cow manure for use as fertilizer to grow and re-grow the forage established on the site in the paddocks or pastures. The rotational grazing method is based on the theory that nutrients from cow manure can be captured in the root zone and uptaken as fertilizer for the plant upon which the cattle graze. The waste from the barn area is collected in a waste storage pond or lagoon and sprayed as liquid effluent on the grassy cover crops established in the various pastures, as is the sludge or more solid waste removed periodically from the waste storage lagoon. The applicant, the 511 acres and the project itself would use approximately 440 acres of that tract. The site is approximately 6 miles south of the Santa Fe River. The majority of the soil on the site consists of fine sand and clay-sand type soils. The dairy would contain approximately 850 cows. Lactating cows (cows being milked) would be grazed in some 36 pastures divided by fencing. They would be grazed in the pastures approximately 85 percent of the time and lactating cows would be in the milk and feed barn located in the center of the lactating cow pastures approximately 15 percent of the time. The manure from the barn, approximately 15 percent of the total animal waste, would be collected and placed in the collection lagoon for spray irrigation on the forage crops grown in the pastures. The remaining 85 percent of the waste would result from direct deposition on the pastures by the cows. The rotational grazing dairy would contain permanent watering troughs in each of the 36 pastures. This creates the possibility of numerous "high intensity areas" or areas characterized by a high level of cattle traffic. This circumstance can result in denuding the cover crop or grasses around such water trough areas which would result in a failure, for that area, of the root-zone-uptake means of waste treatment of nitrates. In order to minimize that eventuality, the cattle would be rotated on a frequent basis from paddock to paddock in an effort to maintain nitrate balance and maintain the sanctity of the cover crop, as would the option of employing movable watering troughs so that areas of denudment of the grass or forage cover can be avoided. Manure would be flushed from the milking and feeding barn with approximately 2,000 to 5,000 gallons of water after each milking and at the end of each shift. Wastewater would then flow into a sand trap or filter and thence through an underground pipeline into an 80 foot x 84 foot concrete-lined storage lagoon. The final site of the storage lagoon has not been firmly determined. The site proposed in the application is located in part over a depression which is a suspected karst feature or area that may be subject to sink hole formation. Therefore, consideration should be given locating the waste lagoon so as to avoid that depression and the permit should be conditioned on installation of the lagoon so as to avoid known karst features. Effluent from the storage lagoon would be applied to 245 acres of pasture with a movable spray gun. The settled sludge from the lagoon would be spread on the same land periodically. The primary grass crop on the site intended for cattle forage would be Coastal Bermuda grass. Coastal Bermuda grows through a large part of the year and is normally dormant, in the climate prevailing in the Gilchrist and Alachua County area, from mid-October until early March. There would thus be little nutrient uptake during that time but to off-set that dormant state rye, wheat, rye grass, sorghum and other small grains could be grown on the site during the winter months in order to continue the waste treatment function of the cover crops. MANAGEMENT PLAN The Department currently does not have in effect a specific rule requiring dairies in north Florida to obtain permits to construct and operate per se, although such a rule does prevail for dairies in the Okeechobee Basin in south Florida. Since 1990, however, the Department has, by policy, required permits for new dairy facilities in the Suwannee River Water Management District as industrial waste water facilities. This policy is derived from the general regulatory authority contained in Section 403.087, Florida Statutes, and Chapter 62-670, Florida Administrative Code.1 The Department policy is described in a letter in evidence from the Department to applicant Watson containing the required conditions on any grant of the permit, to which the applicant has agreed. Those requirements are as follows: Management Plan A site-specific plan, with design calculations, providing for collection, storage and disposal of all wastewater from milking parlor and of runoff from the 25-year 24-hour storm event from all "high intensity" areas within the dairy farm. The calculations should include stormwater computer model SCS TR-55 or similar. Supporting documentation for the plan shall include but not be limited to the following: Water budget and balance, detailed and itemized. Nutrient budget, including wastewater and solids management. Crop management plan with projected crop nutrient uptake rates. Herd management plan, including locations of barns, travel lanes, feed areas, pastures, and management of dry cows and heifers. Treatment and disposal system details, construction details and methods, pumping systems and capacities, irrigation system details, lagoon design and capacity, and site plans. Ground Water Monitoring Plan Determination of ground water depth, variability and direction(s) of flow. Topographic site plan which includes the location of facility property boundaries, sinkholes and cooling ponds. Ground penetrating radar (GPR) if located within Suwannee River Water Management District. Site borings for determination of soil properties, depth and extent of low permeability zones, and confirmation of GPR results. Proposed locations, construction, and development criteria for monitor wells. Inventory of potable wells within 1/2 mile of site. Determination of current ground water quality and compliance. Such plan shall be prepared in accordance with the standards of the USDA NRCS, at a minimum, and shall include detailed instructions for construction, operation, and maintenance of wastewater/runoff collection, storage and disposal systems. DEP Exhibit 1. The various expert and fact witnesses for the Respondents described in their testimony the constituency of that Management Plan and the reasons, within their various scientific discipline areas and their personal factual knowledge concerning why it should be required for the site and project at issue. The 850-cow herd which would be contained on the proposed dairy consists of 550 lactating cows which are milked on a daily basis but also contains 80 dry cows and 220 heifers. Thus some 300 cattle on the dairy will not be milked at any given time and consequently will not contribute to use of the high intensity barn area and the waste collected in the anaerobic lagoon to the extent that those non-milking cattle are not fed and watered in the central barn area. Their waste would more typically be deposited directly on the pastures by those cattle themselves. 10 The project is proposed to provide for on-site containment of all wastes generated by the dairy. There will be no discharge of effluent or other pollutants from the dairy to "waters of the state." The proposed permit requires that no surface water runoff be permitted from the dairy site. The anaerobic or waste collection lagoon is designed to contain all effluent from the milking barn and other high intensity cattle areas in the event of a 25-year, 24-hour storm occurrence. Additionally, a safety factor of one-foot of "free-board" or additional wall height on the anaerobic lagoon is to be provided as an additional safety factor over and above the level expected to be achieved by the above-referenced storm event. The adequacy of the design capacity of the lagoon system is not in dispute. The proposed project and design calls for four monitoring wells to be located along the northern boundary of the property, which is essentially co-extensive with the boundary of the discharge zone at issue. There would be three compliance wells and one background sampling well. The Department's expert geologist, Mr. Davis, was of the belief that an intermediate monitoring well would not be necessary since the four wells would in his view be sufficient to enforce water quality standards. Those wells are located down-gradient according to the known direction of the ground water flow underneath the site, as required by Rule 62-522.600(6), Florida Administrative Code. Although no intermediate wells are provided for by the plan, they have been required at the other two rotational grazing dairies already permitted by the Department in the Suwannee River Water Management Region at least one of which was within a mile of the outstanding Florida water of the Suwannee River. Intermediate monitoring wells at other dairies have shown increased levels of nitrate, although there is no evidence to show that nitrate levels have exceeded state standards at the boundaries of those dairies or their discharge zones. In any event, however, the totality of the expert testimony demonstrates that intermediate wells would provide an efficacious early warning system to predict increases in nitrate contamination. Thus adjustments in the waste and commercial fertilizer nitrate application could be made so that prevention of violation of nitrate standards, by the time waste water migrated to compliance wells around the boundary of the site, could be effected. This would have a substantial predictive value to avoid future nitrate contaminant violations before they occur and they should be installed as a condition on permitting. The proposed dairy design and operation involving rotational grazing is undisputed to be more beneficial to environmental water quality considerations than a traditional cattle confinement type of dairy. The rotational grazing dairy is characterized by cattle spending minimal time in high intensity milking, feeding, and watering areas. Additionally, there will be a significantly lower level of nutrient loading on the pastures with little accumulation of effluent on the land surface. In fact, the deposition of waste through spray irrigation and through the urination and defecation of the cattle directly will still result in a deficit in nitrates needed for adequate plant growth of the grass, and other crop, ground cover necessary for feeding the cattle and making the operation succeed in a waste treatment sense as well. Consequently, it will have to be supplemented by the addition of some commercial fertilizer, the costs of which will result in a natural incentive for the farmer/applicant to ensure that the nutrient loading on the pastures is at a low, environmentally acceptable level in terms of potential contamination of ground water. The proposed dairy has been demonstrated to be consistent with the Natural Resources Conservation Services' requirements and policies concerning dairies and rotational grazing dairies. It is also undisputed that phosphorus is not of an environmental concern with this application and project. There is sufficient iron and aluminum coating on the soils involved so that excess phosphorus will be retained on the site and it is undisputed that nitrogen is the only limiting factor in the design of the dairy. NITROGEN BALANCE The specific concern with regard to the application and the dairy operation is nitrate leaching below the root zone of the crops grown on the surface of the dairy. The dairy is designed to use nitrogen and nitrates by growing crops in the pastures which will then be eaten by the dairy cows, so that the nitrogen is re-cycled with the resulting animal wastes being used as fertilizer for the same grass or crops which the cattle continuously graze. It is anticipated that the amount of nitrogen produced by the dairy cows will be insufficient to optimize that plant growth. Therefore, additional fertilizer will be required to be applied to the land surface in the pastures at times. The additional nitrogen fertilizer will only be applied when testing of soil, and particularly plant tissue analysis, which will be done a regular basis, shows that application of commercial fertilizer is needed to supplement the natural cattle-waste nitrogen. Nitrogen is a concern because if too much of it is applied to the land surface, it may leach below the plant root zone and eventually migrate to ground water. Nitrogen in high concentrations can be potentially harmful to human health, so state drinking water standards have been established for nitrogen with regard to the issuance of industrial waste water permits. The state drinking water standard for nitrate is ten parts per million at the zone of discharge, that is, the zone of discharge into the ground water aquifer. The dairy is designed in such a way that nitrate levels will not exceed water quality standards. The design is determined by reviewing nitrogen balances and making sure that excess nitrogen will not leach past the root zone. The engineers evaluating and designing the project for the applicant, and testifying concerning it, arrived at a "mass balance" to estimate the nitrogen amounts on the site. This mass balancing is required by the Department in the required estimating of the pounds of nitrate leachate. Nitrogen can be removed from the dairy operating system through atmospheric losses or "volatilization" particularly from the urine component of nitrogen application. It can be removed through milk losses, whereby nitrogen is removed from the digestive system of the cattle through its being bound up to some extent in the milk produced by the cattle and sold off the dairy site, as well as some minimal leaching of nitrate through the soil. The nitrogen that is not removed by volatilization to the atmosphere (excluding the small amount re-deposited by rainfall) will be cycled through the cows and the crops along with any supplemental nitrogen applied from time to time in order ensure optimal plant growth. The mass balance, or amount of pounds of nitrate in the leachate, was determined by considering the amount of water flowing through the system. The re-charge rate was established by the applicant's engineer Mr. Holloway to be 17 inches. This means that there will be 17 inches of rainfall leaching below the root zone of the cover crops to reach ground water. The re-charge rate can be determined by computing the average of the evapo-transpiration and average rainfall and subtracting the difference. It can also be calculated by employing computer models such as the "GLEAMS" model. Mr. Holloway, the applicants engineer, used both sources or methods and reached the figure 17 inches. The GLEAMS model is a computer model that uses local data to determine water budgeting and recharge rates. Mr. Holloway also used a 50 percent volatilization rate for the nitrate losses when determining his mass balance. The applicant's experts also considered the plant uptake rates and concluded that the uptake rate would be between 500 and 700 pounds of nitrogen uptaken per year, per acre, by the plant cover. In order to be conservative and to install a sufficient safety factor in the system to avoid overloading it with nitrates and endangering ground water quality, they employed a lower uptake rate in their calculations and recommendations to the applicant, and thus to the Department, as to the amount of nitrogen applied per acre, per year, from all sources to only be 400 pounds. The conditions imposed by the Department in the "free-form" consideration process and draft permit thus limits the total pounds of nitrogen permissibly applied to this site to 400 pounds per acre, per year. Those 400 pounds of nitrogen are represented by 260 pounds applied from manure from the livestock and no more than 140 pounds applied from commercial fertilizers purchased by the farmer, Mr. Watson. The 400 pounds of nitrogen per acre, per year, as a condition on the permit is less than that allowed at the other rotational grazing dairies previously designed by Mr. Holloway and approved. Additionally, Mr. Cordova of the Department established that there are no rotational grazing dairies that have a higher nitrogen deficit than the Watson dairy. This further provides a significant safety factor not present in other approved dairies. Atmospheric losses of nitrogen up to 80 percent have been documented with similar dairy operations. Atmospheric losses can occur through both volatilization and de-nitrification. Volatilization is the process where nitrogen is removed from the system by the ammonia in the waste products, changing into a gaseous state and migrating into the atmosphere as a volatile gas. De-nitrification is the process where microbes, principally in the absence of oxygen (anaerobic) reduce nitrates to nitrogen gas and to possibly N2O, which is a volatile, and then allow it to escape into the atmosphere. The applicant has agreed, as a condition to the permit, to apply soil testing and crop tissue analysis as well as quarterly reviewing of the monitoring wells before he determines to supplement the natural fertilizer deposited from the animals with additional commercially purchased fertilizer. The commercially purchased fertilizer would represent a substantial investment in purchase costs and in labor costs for its application. This is an additional safety factor because the applicant clearly would not have an interest in applying any more fertilizer than was absolutely needed to secure optimum plant growth for grazing purposes and nitrogen uptake or waste treatment purposes. This is a further method which will prevent excessive nitrate nutrients from being deposited on the site and possibly into the ground water. Dr. Bottcher, an expert witness for the applicant, testified that he expected nitrate levels at the zone of discharge within the boundaries and beneath the surface of the dairy farm to be between 4 and 6 parts per million. Mr. Holloway expected within a reasonable degree of certainty that on a long term average, with about 4,000 pounds of nitrate leaching below the root zone system, that the concentration directly below the farm beneath the root zone would be between 2 and 3 parts per million. Indeed, the proposed operation would be similar to the existing condition at the Watson farm involving grazing beef cattle on a system of pastures, with row crop operations. Row crops typically have a higher impact of nitrates than the proposed dairy operation would have and beef cow grazing would have a similar impact, although it would be slightly less. Thus the proposed operation is similar in its nitrate impact to the existing conditions at the site. Moreover, the applicant is limited by the permit conditions already agreed to, to spray manure on the spray field area at the rate of less than one half of an inch. The spraying to that limitation would probably take from two to five hours per week. One of the important safety mechanisms in achieving a nutrient balance on the dairy site and in its operation, so as to ensure that ground water quality violations do not occur, is the application rate of nitrate to the land surface. As shown by Dr. Bottcher's testimony, the farmer may increase crop production by applying more fertilizer during seasons of heavy growth of the plant cover. The application rate can then be decreased when there is less growth and, therefore, less need for nutrients to grow the cover crops. A smaller application rate will increase the volatilization rate by avoidance of the infiltration of the nitrate bearing effluent into the soil through hydraulic action and through the saturation mechanism, since a smaller amount of application would tend to leave more of the effluent within less than one inch of the land surface, or on the land surface, thereby allowing it to be volatilized more readily. This circumstance will decrease the amount of nutrient leaching below the root zone and thus prevent the nitrates from being transmitted to the ground water. A number of crops can be grown successfully and appropriately on the site in order to provide the grazing forage needed for the operation of the dairy. Examples, depending upon the season of the year, are rye, wheat, grain sorghum, and various grasses, including Coastal Bermuda grass. Coastal Bermuda is a perennial grass, high in protein available for livestock and is already established on the site. The various other crops can be grown as well and some that grow in the winter months, such as rye, will be grown by Mr. Watson. The growing of the various cover forage crops are limited by the limitation in the permit which is conditioned on maintaining a cover crop growth situation where the average annual uptake is at least 400 pounds per acre (the evidence reveals that in reality it would be more on the order of 500 to 700 pounds per acre, per year). Dr. Pollman and Dr. Upchurch, expert witnesses for the Petitioners, question the nitrogen balancing and leachate predictions arrived at by the applicant's expert witnesses, as well as those of the Department. Neither Drs. Pollman nor Upchurch had any prior experience or expertise with testing for a nitrogen balancing on rotational grazing dairies. Instead they utilized various models to attempt to predict leachate amounts. Dr. Pollman's modeling utilized formulas prepared by the applicant's experts. His modeling showed a high percentage of the predicted outcomes to be actually within regulatory standards for nitrates, even though all of his estimates failed to take into account the variable inclusion or application rate for nitrogen through commercial fertilizer which will only be applied on an as needed basis after appropriate plant tissue and soil tests show that commercial fertilizer should be applied. Likewise, Dr. Upchurch's modeling results were also mostly within acceptable standards for nitrate concentrations unless one assumes that the nitrogen application rates exceed the amounts allowed under the permit, which will not be the case in reality because obviously the permit limits must be complied with. Dr. Upchurch also utilized a model, "NLEAP," which was neither designed nor calibrated to be used for predictive capabilities and is still considered experimental by the NRCS. WASTE LAGOON The applicant proposes to construct a waste storage lagoon designed to hold seven days' waste water generation capacity or 26,000 gallons per day. In addition to that required storage for a 25-year, 24-hour storm event, an additional safety factor of one foot of free board has been designed into the lagoon system. The lagoon will be constructed with 6 inch thick, fiber-reinforced concrete. No evidence was offered by the Petitioners that the lagoon design itself was faulty or inappropriate, rather the Petitioners contend that there is a chance that a surface failure beneath the lagoon, by the result of a sink hole developing, particularly in the present preliminary location proposed for the lagoon, could cause the lagoon to crack. The applicant will, however, in order to ensure that the area is suitable for the lagoon have the appropriate engineer "over-excavate" the site in order to minimize the change of a sink hole developing. Additionally, soil borings will be done beneath the surface to provide additional assurance that the lagoon will not fail due to voids or sink holes being present beneath it. Because the lagoon is presently preliminarily located in an area that appears to embody an old, inactive karst depression, consideration should be given to altering the site of the lagoon slightly so as to avoid this area, after soil borings and other investigation is done to ascertain whether the area poses a risk of lagoon failure. Additionally it must be pointed out that because the applicant would need to expend a substantial investment to rebuild the lagoon in the event of such a failure, he has a strong incentive to locate the most suitable geological placement for the lagoon in any event. GEOLOGIC SITE CHARACTERISTICS It is undisputed that the geology underlying the surface of the dairy site is karst in nature: that is, it is characterized by a sub-strate of limestone which can, through the dissolution process caused by percolating water, be susceptible to fissures, voids, underground conduits and sink holes. This, however, is true for essentially all areas used for agriculture in the Suwannee River Area Water Management District, the area to which the subject above- referenced policy concerning installation and permitting of dairies applies. Because of the karst nature of the area, sink holes and other potential surface openings to the ground water could occur at the site. It is most significant, however, that both Mr. Holloway's and Dr. Kwader's testimony established that the soil layer at the site was more than sufficient to protect the ground water. In fact, the soil layer averages from 45 to 50-feet thick over the underlying limestone sub-strate of the Ocala Formation. Further, the proposed permit and its conditions would require a management plan which, with the conditions already placed on the permit and recommended herein, will adequately deal with the possibility of sink holes, "pipes" or "chimneys" developing on the site. The dairy design success is derived essentially from the sufficient nutrient uptake in the root zone of the plant cover, balanced with careful control of the application rates of both the natural fertilizer from the cows and the commercial fertilizer which will supplement it from time to time. Any possibility that the treatment zone for nitrates associated with the plant root zone would be by-passed by the effluent as a result of sink holes or other types of fissures developing can be resolved by proper management practices, which the conditions proposed for the permit and those recommended herein will insure are implemented. For instance, if sink holes, other depressions or holes develop in the site, they will be filled with soil to a depth of five feet, with an impervious clay cap on top of that and then a layer of top soil to allow for re-establishment of the root zone on the surface. The permit should be so conditioned. Moreover, if sink holes or other voids develop that are too large to be so filled and pose a risk of migration of effluent below the root zone to rapidly to the ground water, they will be fenced off and cows will not be allowed in the area. The area will be removed from the irrigation application process until repairs are made, under the presently proposed conditions on the permit. An additional condition should be imposed whereby any sink holes or other voids or similar breaks in the ground surface which pose a risk of effluent rapidly migrating to ground water should be bermed around the circumference to prevent effluent or stormwater laden with nitrates from the land surface from entering the fault or cavity. The applicant is required under the proposed conditions on the permit to report to DEP any sink holes which develop within a certain period of time in the barn area. Cows are not to be permitted to enter into any of the sink hole areas by additional fencing, if necessary. If sink holes develop in the spray field there can be no discharges of fertilizer or irrigation on those areas until the sink holes have been repaired in the manner referenced above. The phosphate pits on the site will also be fenced to prevent discharges past the root zone potentially caused by cattle entering the pits. Additionally, berms are required to be constructed around the phosphate pits to prevent surface water from storm events or other means by which nitrates from the ground surface can be transported into the pits and then possibly to ground water. Any holes which may develop, also called "piping failures," around the periphery of the phosphate pits should be treated in a similar manner to prevent the migration of surface water into those holes whether or not they communicate with the phosphate pits themselves by fencing and berming. These arrangements coupled with the fact that the phosphate pits are characterized by a sufficient soil layer in the bottom of the pits between the bottom surface of the pits and the water table or aquifer will constitute reasonable assurance that the pits will not result in a conduit or path for nitrate-laden, surface water to migrate past the root zone directly into the ground water aquifer. Mr. Holloway, an engineer, testifying for the applicant conducted soil borings on the site to verify the Natural Resources Conservation Service (NRCS) surveys as accurate and to ensure that an adequate root zone for treatment purposes existed. Additionally, the NRCS did a ground penetrating radar survey or study on the property. The Petitioners also did a separate ground penetrating radar study performed by Mr. Windschauer. The Petitioners study identified a number of karst-type "anomalies" on the property. The number of anomalies located by Windschauer was not unusual for a such a karst geologic area, but, in any event, all of them had adequate soil depth to support the crops necessary to establish the root zone and maintain the nitrogen balancing. Soil borings were conducted, as well on four of the anomalies, under Dr. Upchurch's supervision. They confirmed that there was adequate soil depth to support crops and protect groundwater. The conditions already imposed on the permit to which the applicant has agreed, require a minimum of five feet of soil depth to ensure adequate treatment including the soil below the root zone and that soil depth and plant cover will have to be maintained even if repairs are necessary to karst anomalies or "sink holes," or the dairy will have to cease operation. The soil depth on the dairy is approximately 45-50 feet and the water table is approximately 55 feet below the ground surface. While the Department's expert, Mr. Davis, is satisfied that the location of the monitoring wells and the number of wells are adequate to monitor compliance with water quality standards for groundwater at the site, the draft permit conditions allow for a change in the number and the location of the monitoring wells. The evidence in the case, including that which shows that an intermediate well at another similar dairy site has shown elevated nitrate levels (although it has not been shown that other conditions are similar to those proposed in this permit application and in the evidence) would indicate that it would be prudent to install intermediate monitoring wells, upgradient, within the dairy site to serve as an early warning, predictive mechanism to avoid water quality violations at the boundary of the zone of discharge. This will allow time for steps to be taken, through various adjustments in the operation, to prevent any violations of the ten parts per million nitrate groundwater standard. The permit is recommended to be so conditioned. Dr. Kwader performed a photolinear trace analysis. He indicated that he did not find any particular linear features such as fractures. A fracture in the limestone stratum is significant in that it can provide a conduit or preferential pathway through the sub-surface rock and thus transfer contaminants from one point to another at a more rapid rate than simple percolation through soil and pores in the rocks. This could result in excessive nitrates being deposited in the groundwater aquifer before an adequate treatment time and mechanism has had its effect on the nitrates. A fracture or conduit flow will, however, cause dilution and Mr. Davis, for the Department, testified that he did not expect a higher concentration of nutrients in a fracture than in the surrounding rock. Additionally, there will be substantial dilution once the nutrients reach the aquifer and begin moving laterally. The dilution will be proportional to the water moving through the conduit, meaning that if the fracture is relatively large, then the concentration of nutrients will be proportionately smaller because of the higher volume of water. Such linear features or fractures are difficult to observe through 50 or more feet of soil existing at the site above the rock stratum and the top surface of the aquifer. Dr. Upchurch, for the Petitioners, also performed a photolinear trace analysis and identified two areas as being highly probable, in his belief, for linear fracture features beneath the farm and surrounding area. He believes there is a possibility of a number of other fractures beneath the Watson property, although the evidence does not definitely identify such nor the measures or precise locations of any such postulated fractures. The Watson property, however, is not unlike any of the surrounding karst terrain with respect to such potential linear fracture features and, in fact, much of north Florida can be so characterized. Moreover, Dr. Upchurch himself agreed that only a limited area of the Watson farm would be impacted by such features, and further, if they are present, they will not impact the nutrient balance aspect of the dairy design because it will perform above many feet of soils separating it from the fractures, if they exist. Limestone pinnacles protruding to the land surface can provide preferential pathways for water to migrate downward to the groundwater aquifer in a manner similar to that posed by a sink hole. They can also function as a break in the soil and plant root zone covering the spray effluent treatment area if allowed to remain exposed. Limestone was observed within one of the mine pits and in a sink hole. It is not clear whether it is a pinnacle which leads down to the sub-strate containing the aquifer or is merely a remnant boulder. In any event, these pinnacles or limestone outcroppings or boulders, whatever they prove to be, will not result in a preferential pathway for water to migrate to the aquifer because the management plan conditioning the permit requires that any limestone protruding to the surface be sheared off and replaced with top soil and vegetation. The permit conditions require that at least five feet of soil overlaid by vegetation must be present for all areas in the spray field. No exposed groundwater was observed in any of the sink holes. In fact the aquifer water level would be at least ten to twenty feet below the bottom of any pit or sink hole observed on the property. An additional 50-foot buffer from the property boundary surrounds all of the paddocks, providing an additional safety factor before the outside boundary of the zone of discharge is reached. The proposed dairy is located approximately six miles south of the Sante Fe River at its nearest point. The Sante Fe River is an outstanding Florida waterway in accordance with Rule 62-302.700(9)(i)27, Florida Administrative Code. The dairy site is not within the flood plain of the river and there will be no surface water discharged from the dairy, including none to the Sante Fe River. Any impact the dairy might have on a water quality in the Sante Fe River would come from groundwater flowing from the site to river. Groundwater beneath the dairy site flows first in a northeasterly direction thence apparently swinging more northerly in the direction of the river, more or less in a "banana shape" flow pattern and direction. Current permitting requirements for such a dairy require that the groundwater leaving or flowing from the zone of discharge must meet "drinking water standards." Those standards are codified in Rules 62-520.400 and 62-522.400, Florida Administrative Code. Those standards require that nitrates not exceed the standard or level of ten parts per million. Dr. Bottcher's expert opinion, which is accepted, is that the dairy design and operation will provide adequate protection to the Sante Fe River with that perameter in mind. He also established that reasonable assurances exist that the river will be adequately protected and not significantly be degraded alone or in combination with other stationary installations in addition to the dairy in question. The dairy waste management system has been established by preponderant evidence to abate and prevent pollution of the groundwater to the extent required by the applicable statutes, rules and policies, in that water or pollution will not be discharged from the dairy in violation of the above-referenced standard. Especially because of the great thickness of soil cover and because of the conditions and protective measures designed into the draft permit, and the project and recommended as conditions herein, in order to prevent effluent from bypassing the root zone treatment area due to karst features the preponderant, credible geological and hydro- geological evidence, including that of Mr. Davis, shows, within a reasonable degree of professional certainty, that there are not conditions concerning the hydro-geology or geology in the area of the site as to make it unsuitable for the proposed dairy operation in the manner conditioned and recommended herein. SECTION 120.57(1)(E) - FINDINGS The specific permitting requirements for the rotational grazing dairy at issue are embodied in a policy followed by the Department as far back as 1990. Those requirements are not contained in a Department rule. Rather, the policy is presumably enacted pursuant to the statute referenced by the parties, including the Department, in this case as the general pollution abatement statute, Section 403.087, Florida Statutes. The action of the Department in announcing its intent to grant the permit may be deemed an agency action "that determines the substantial interest of a party and that it is based on an un-adopted rule . . ." to the extent that one might deem this policy, consistently followed in a substantial area of the state since 1990, an un-adopted rule for purposes of Section 120.57(e)(1), Florida Statutes. In that context, the agency must demonstrate that the un-adopted rule comports with the statutory definitional of characteristics of a valid rule. Thus the agency must present proof that its un-adopted rule or "policy" would be valid as a rule. In that context the evidence adduced by the Department and indeed by both Respondents, since they presented a joint case, shows that the policy at issue is within the powers, functions and duties delegated by the legislature in Section 403.087,Florida Statutes, which is a generalized grant of authority designed to give the Department the power to regulate in a way to abate the pollution of waters of the state, including groundwater. It has also been adequately shown that the policy or un- adopted rule does not enlarge, modify or contravene the specific provisions of that law being implemented but rather provides sufficient regulatory details so that the general principals, stated in that statute, can be carried out in terms of the installation, regulation and operation of the subject dairy project. It has been adequately proven that the rule is not vague and that it establishes adequate standards for agency decisions on whether or not to permit such a rotational grazing dairy. It does not vest unbridled discretion in the agency nor constitute an arbitrary or capricious act or policy imposition, because the standards and requirements advanced by the Department as being necessary under this policy or un-adopted rule, for a permit to be granted, must, of legal and factual necessity, be predicated on competent, scientific expert and factual evidence. That has been shown, which likewise meets the requirement that the un-adopted rule be supported by competent and substantial evidence. Likewise, the evidence shows that under the circumstances, given the great public necessity in protection of the groundwater and the Floridian aquifer, that the requirements placed upon a grant of a permit for this project and the conditions placed upon its construction and operation do not impose, under the circumstances, excessive regulatory costs on the regulated person, Mr. Watson, or the governmental entity where the project is located, in other words, Gilchrist County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered granting the permit requested by Craig Watson to construct and operate the proposed dairy waste management system in accordance with the draft permit proposed by the Department, including the general and specific conditions attached and incorporated therein and also including the general and specific conditions recommended to be adopted and implemented for the proposed system in this Recommended Order, based upon the preponderant, persuasive, credible evidence. DONE AND ENTERED this 23rd day of February, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1999.
Findings Of Fact The subject application requests a water use permit from the Central and Southern Florida Flood Control District (FCD) for the supplemental irrigation of 145 acres of citrus lands located in Orange County. Received into evidence at the hearing were the public notice of hearing appearing in the Sentinel Star, permit application number 21424 with an attached report and the Staff Report of the FCD, prepared by Nagendra Khanal. The applicant requested an annual allocation of water in the amount of 120.15 acre-feet or 9.94 inches per year, for a period of twenty (20) years. The Staff Report recommends the issuance of a permit for said amount, with maximum monthly pumpages not to exceed 49.8 acre-feet or 4.13 inches, the permit to expire on January 15, 1978. Several further special provisions were recommended on pages 4 & 5 of the Staff Report, which report is attached hereto. There is no dispute between the applicant and the FCD over the technical aspects of the Staff Report. The protests of the applicant center around the length of the permit and some of the special provisions recommended in the Staff Report, which the applicant feels are vague and ambiguous. Mr. James A. Hinson, the applicant's corporate secretary, felt that the FCD had sufficient data and statistics as to the water resources and agricultural usage within the area to sustain the granting of a twenty year permit. It was further felt that the issuance of a two-year permit for the purpose of gathering information as to the quantity of use would tend to prompt higher usage and even lead to falsification of pumpage records on the part of agricultural users so as to assure the issuance of future permits. The applicant was also concerned with the costs of applying for another permit in two years. Mr. Nagendra Khanal, a hydrologist with the FCD, explained that the purpose of the two-year permit was to obtain information from agricultural users in the area as to the amount of water used and the effect of such usage on the Florida aquifer system. Since the outset of regulatory provisions, the FCD has set the same termination date for each permit for agricultural use within each of the basins. At that expiration time, the pumpage records for all users in the area will be established and present experimental estimates can then be compared with actual usage. Little is known by the FCD about how the Florida aquifer system operates and the data presently in use are experimental. Since all permits within each basin will expire on the same date, the entire basin can then be evaluated at one point in time. It was felt that if falsification of pumpage records were to occur, it could probably be detected by data currently available to the FCD. It was further opined by Mr. Khanal that at, the expiration date of all permits issued in each basin, an automatic conversion into new permits would occur at little or no cost to the applicant. With regard to the special provisions recommended in the Staff Report, Mr. Hinson expressed concern over the manner of compliance. Specifically, he desired more information on the type of equipment or devises required by the FCD when it calls for "minimum head pressures", and "a measuring device on each of the three wells." He also desired information as to the times of year the water quality analyses were to be performed. Mr. Khanal explained that no regulatory criteria had been established by the FCD with regard to pumpage and that the minimum type of measuring device, such as a time clock, on each of the wells would suffice. Further specifications will be supplied to the applicant upon request. It was explained by Khanal that the water quality analyses should be performed once before the rainy season (at the end of May) and once after the rainy season (at the end of October). There was some confusion over the inclusion of the parameter of "specific conductivity" within the definition of a standard complete water quality analysis. Finally, Mr. Khanal listed two amendments to be made in the Staff Report. On page 2, under "B. Existing Facilities", "3,500 gpm" should read "3,600 gpm." The last item on the chart on page 3 of the Staff Report should read "2 in 10 Year Drought" in lieu of "1 in 10 Year Drought."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Application No. 21424 be granted and that a permit be issued in accordance with the recommendations and provisions set forth in the Staff Report, as amended. Due to the apparent confusion over the inclusion of "specific conductivity" as a parameter to be included within the definition of a standard complete analysis, it is further recommended that the Staff make further inquiry into its necessity. If the Staff then concludes that "specific conductivity" is necessary to obtain a complete water quality analysis, it is recommended that it remain on the list of parameters. Respectfully submitted this 5th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR 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 5th day of March, 1976 COPIES FURNISHED: Thomas C. Garwood, Jr., Esquire Akerman, Senterfitt, Eidson and Wharton 17th Floor CNA Building Orlando, Florida Stephen A. Walker, Esquire Post Office Box V West Palm Beach, Florida 33402
The Issue The issues to be resolved in this proceeding concern generally whether the Respondents named above are liable for the contamination and violations alleged in the Petitioner, Department of Environmental Regulation's (DER) Notice of Violation and Amended Notice of Violation, pursuant to the relevant provisions of Chapter 403, Florida Statutes, and the rules contained in Title 17, Florida Administrative Code, as relevant to this proceeding and treated herein.
Findings Of Fact DER is an agency of the State of Florida charged, under Chapter 403, Florida Statutes, and related rules, with preventing and alleviating environmental contaminations, as pertinent hereto, including such issues involving ground waters of the State of Florida. The property in question in this proceeding is located at the northwest corner of Blount and Guillemard Streets in Pensacola, Florida. The legal description of that property and the state of the title of the property is as described in the Prehearing Stipulation filed by the parties at page two thereof. The Belleaus are the current owners of the real property at that location. Crown is the owner and operator of a commercial laundry and dry cleaning business situated on that property in the building(s) located thereon. Crown is a corporation authorized to do business in the State of Florida and is a "person" within the meaning of Section 403.031(5), Florida Statutes. American Linen is a corporation authorized to conduct business in the State of Florida and is also a "person" within the meaning of that Statute. American Linen obtained the property by purchase by corporate warranty deed from Rentex (RCD) on April 23, 1979. It operated a commercial laundry at the property from that date until June 3, 1985, when it sold the laundry business to Crown and the real property upon which it operated to the Belleaus. In November of 1971, RCD, a Delaware corporation and a 100 percent-owned subsidiary of Rentex Services corporation (RSC), also a Delaware corporation, acquired the property. RCD owned and operated a commercial laundry and dry cleaning business on the property until April 23, 1979, on which date it sold the laundry business and property to American Linen. It actually operated a dry-cleaning service on the property during only 1974 and early 1975. Sketchley Delaware, Inc. (SDI), a Delaware corporation, purchased RSC, which then became a 100 percent- wholly-owned subsidiary of SDI in 1982. RCD, however, remained a 100 percent-wholly-owned subsidiary of RSC until 1983. In March of 1983, SDI merged with RSC, and the resulting corporation was named "Sketchley Services, Inc." RCD continued as a corporation, 100 percent-wholly-owned as a subsidiary of Sketchley. In October of 1983, RCD merged into Sketchley, and Sketchley survived. Respondent Sketchley has never held title to nor conducted any form of business on the property in question. On March 29, 1991, Sketchley was renamed "Jura Services, Inc." (Jura) and was converted to a close corporation under Delaware law. This controversy had its origins in May of 1986 when a representative of DER performed a routine sampling of tap water at the DER district office in Pensacola. Those samples were subjected to chemical analysis which revealed the presence of PCE, a widely-used solvent often associated with dry-cleaning operations. That tap water came from the public water supply for the City of Pensacola, supplied by a network of potable water wells. Upon learning of the PCE content in the water supply, DER began an investigation to attempt to locate its source. Analysis of a number of the Escambia County Utilities Authority (ECUA) wells (PW-6, PW- 8, PW-9, and east well) contained quantities of PCE in excess of the maximum contaminant levels for drinking water authorized by DER's rules. Those wells were taken out of service in June of 1986, subjected to carbon filtration which ultimately removed the PCE from the water supply for those wells, and the wells have since been put back in public service. A ground water investigation was undertaken by DER to determine the source of contamination in the upper portion of the sand and gravel aquifer and in the production zone of the deeper Floridian aquifer which supplies those wells. A total of 29 ground water monitoring wells (MW) were installed and sampled. An analysis of these was prepared (87-04 report). On February 7, 1987, DER and representatives of the utilities authority and Crown, the operator of the laundry facility, conducted an inspection and clean-out of the surge tank located in the floor of the Crown laundry building. A chemical analysis of three samples of liquid residue in the bottom of the tank revealed the presence of PCE in those sediments in concentrations of 1,952 parts per billion (PPB), 108.5 PPB, and 50 PPB. Additionally, one of the samples revealed trichloroethene at 34 PPB and 1, 2 dichloroethene at 52,800 PPB. Under certain conditions, these last two-named compounds are produced as bi-products of the breakdown of PCE. Based upon this inspection and the investigation of other potential sources, DER took the position that the surge tank at Crown had discharged waste water containing PCE into the adjacent soils and that PCE migrated into ground water produced by the ECUA's public water supply wells, PW-6, PW-8, PW-9, and "east well". Although not stipulating that the samples were representative or to the conclusions to be drawn from the analytical results of testing the samples, the parties stipulated that proper physical and technical procedures and methods were used in the collection, preservation and analysis of all of the samples and the laboratory results were consequently stipulated into evidence. Jura, American Linen, Crown, and the Belleaus had no actual knowledge that any PCE had been deposited in the surge tank between 1971 and the date in 1979, when American Linen bought the facility. A commercial laundry has been operated on the subject property since 1971. The laundry was operated by RCD at that time, and in the summer of 1974 and during at least part of 1975, a dry-cleaning operation, in addition to laundry, was conducted by RCD at the site. The dry-cleaning operation involved the use of PCE. This was the only period of time when dry-cleaning operations were conducted on the property until 1985 when Crown conducted a dry-cleaning operation. Crown's operation, however, made no use of PCE, but rather, Crown used "stoddered solvent" as its dry- cleaning fluid. During American Linen's ownership and operation of the laundry at the site, no dry-cleaning operations, whatever, were conducted. At no time during American Linen's ownership and operation of the laundry at the site nor during the Belleaus ownership, and Crown's operation, of the laundry facility was any PCE used or stored on the property. Since laundry operations commenced at the site, the waste wash water from the laundry was discharged to the surge tank located beneath the floor of the Crown building. That tank intercepts and stabilizes wash water prior to its discharge to the municipal sanitary sewer system. The surge tank also served as a component of the laundry operation as a thermal recovery system. Although the surge tank and the commercial laundry and dry-cleaning businesses which have been operated at the site constitutes an "installation" for purposes of Section 403.031(4), Florida Statutes, the tank has never been used for the intentional storage or disposal of any "hazardous substances", as defined in Section 403.703(31), Florida Statutes, by any of the Respondents. The tank has never been used for the intentional disposal of any hazardous substances by American Linen, Crown, the Belleaus, or Jura. During normal laundry operations, lint, sand and other sediment accumulated in the bottom of the surge tank over a period of time. When the accumulated quantity of sediment became too great so as to interfere with the operation, the liquid and the sediments were removed periodically by a vacuum truck and manual labor, using shovels, buckets, and a dumptruck. The surge tank was cleaned out several times over the pertinent years, including 1976, 1978, or 1979 (before American Linen's purchase), as well as in 1980-81, 1983, 1987, 1990 and 1991. It was possibly cleaned in 1972 or 1973, as well. In the 1976 clean-out, the surge tank was cleaned thoroughly enough that the workers reported searching for loose change on the concrete floor of the tank. DER must prove a violation of Section 403.161(1)(a) or (b), Florida Statutes, in order to establish liability for purposes of Section 403.141(1), Florida Statutes, and Section 403.121(2), Florida Statutes. DER has also sought, as of the time of hearing, to impose liability on the Respondents, pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the owner and operator or former owner and operator of a facility at which a release to the environment of a hazardous substance has occurred. Section 403.161(1)(a), Florida Statutes, provides that it is prohibited for a person to cause pollution so as to harm or injure human health or welfare, animal, plant, or aquatic life, or property. In this proceeding, DER did not establish with competent, substantial evidence that the alleged pollution by PCE caused any harm or injury to human health or welfare, animal, plant, or aquatic life, or property. No risk assessment was conducted to determine the potential harm or actual harm. No testimony was presented with regard to the possible health effects or injurious impacts of PCE in the environment. There was no evidence shown to establish what amount of PCE in the environment or ground water might cause or potentially cause such harm to human health or any of the other injurious effects referenced in the above-cited Statute. DER has not adduced any evidence of a preponderant nature to show that any Respondent is thus liable for a violation of Section 403.161(1)(a), Florida Statutes. Section 403.161(1)(b), Florida Statutes, provides that it is a violation to fail to comply with any rule of DER. Section 403.161(1)(b), Florida Statutes, is implemented with regard to ground water through former Rule 17-4.245(2), Florida Administrative Code, now Rule 17- 28.700, Florida Administrative Code, which provides a cause of action for violation of ground water standards. In order to maintain a cause of action under that Rule, DER must prove that the Respondents violated either Rule 17-3.402(1), Florida Administrative Code (the "Free From" Rule), or Rule 17-3.404(1)(a), Florida Administrative Code, which sets forth the ground water criteria alleged in the NOV and Amended NOV to have been violated. Concerning Rule 17-3.402(1), Florida Administrative Code, which establishes narrative, minimum health effects-based criteria applicable to ground water, DER has alleged that the Respondents failed to comply with this Rule, but introduced no evidence concerning any health effects of PCE in the ground water. DER produced no evidence whatever regarding the concentration, if any, of PCE, which may be carcinogenic, mutagenic, teratogenic, or toxic, or which would pose a serious danger to the public health, safety or welfare, or create a nuisance, or impair the reasonable and beneficial use of any adjacent ground water. Even assuming that some amount of PCE was released from the surge tank at some period of time, DER failed to present any evidence regarding the quantity of PCE which may have been released, and the concentration in the ground water which could have resulted from a release from the Crown property. It simply was not proven that the concentration shown in the wells, at which samples were taken, all resulted from any release, if any, which came from the Crown property. Thus, DER failed to adduce evidence which can demonstrate in a preponderant way a violation of the "Free From Rule" cited above or which would support its cause of action under Section 403.161(1)(b), Florida Statutes, with regard to alleged violation of this Rule. DER has also alleged that the Respondents violated Rule 17-3.404(1)(a), Florida Administrative Code, cross- referencing and incorporating former Rule 17-22.104(1)(g), Florida Administrative Code, now Rule 17-550.310(2)(d), Florida Administrative Code, which sets forth the ground water standard, in the form of maximum contaminant level (MCL) for PCE. In order to demonstrate a violation of Rule 17-3.404(1)(a), Florida Administrative Code, as to each Respondent, DER had to prove that the Respondents caused a release of PCE to the ground water, resulting in a concentration of PCE in the ground water greater than the MCL established by the Rule. Effective May 23, 1984, DER thus established 3 parts per billion as the MCL for PCE in drinking water and as the water quality standard for PCE applicable in Class G- II ground water, which is the classification of the ground water underlying the Crown property, and occurring at all of the supply wells and monitor wells involved in this proceeding. In order to demonstrate a violation of the MCL by release of PCE from the laundry property, DER had the burden of proving: (a) that PCE entered the surge tank; (b) that the surge tank, in fact, released it to the environment and to the ground water; (c) that the release of PCE occurred during the ownership and/or operation of the laundry by one or more of the Respondents; and (d) that the amount of PCE entering the ground water during ownership and/or operation of each Respondent caused the concentration of PCE in the ground water to exceed the MCL in effect at the time of each Respondent's ownership and/or operation. Proof of PCE in the Tank Rentex installed a dry-cleaning machine at the Crown facility during mid-1974. It was equipped with two PCE holding tanks with PCE being used as the cleaning solvent in the dry-cleaning process. There was a storage tank, four to five feet tall, which stored pure PCE. The other tank was an eight to ten foot tall "cooker" tank used to heat and reconstitute PCE used in the dry-cleaning process. The machine was located near the rear of the Crown building, close to the floor drains and the wash room. The dry-cleaning machine was dismantled and removed from the Crown facility to another dry-cleaning establishment in Baltimore sometime in late 1974 or the early part of 1975. The thrust of DER's case is that spills of PCE occurred from the dry-cleaning machine and its operation at the Crown facility which were allowed to enter the surge tank and thence leaked into the soil, the environment and the ground water. Indeed, several boil-overs of PCE occurred during the period of 1974 and early 1975, when the dry-cleaning operations were being conducted at the facility. Witnesses, Mathias and Hedrick, for DER, established that one spill of PCE in the amount of four to five gallons also occurred, along with several boil-overs from the laundry machine during that time period; however, the actual amount of PCE spilled or boiled over from the dry-cleaning machine and its operation was not established by DER. Mr. Mathias worked as a maintenance man at the facility during the relevant period when dry-cleaning operations were conducted by RCD. He established that there were several boil-overs of PCE from the cooker tank and that when PCE boiled over from the top of the machine, some quantity would be sprayed onto the floor which was then hosed off into the floor drains, which communicate with the surge tank. He was unable to quantify the amount of PCE spilled on the laundry floor or which reached the surge tank, however. He was not able to definitively establish how many boil-overs he witnessed nor their severity in terms of the amount of PCE which was resultingly spilled on the floor of the laundry. He did not witness any spills of PCE other than those occurring in conjunction with boil-over events. Mr. Hedrick was also a maintenance man at the facility during RCD's period of ownership and its dry- cleaning operations. He knew of one incident in mid-1974 in which four to five gallons of PCE were spilled directly onto the floor of the laundry due to a hose connecting the holding tank to the cooker tank being inadvertently disconnected. That PCE was washed with a hose into the floor drains and thence into the surge tank. Mr. Hedrick could recall only two boil-overs of PCE from the dry- cleaning machines. These incidents involved PCE spraying over the top of the cooker tank but did not involve the release of any significant amount of PCE onto the floor. Mr. Hedrick established that employees were careful in handling the chemical because it was very expensive and they were careful not to waste it. After boil-over events which he described, he observed the level of the PCE in the holding tank, which did not appear to drop much as a result of the boil-overs. He was also responsible for refilling PCE into the holding tank as necessary. His experience was that he was not required to add PCE to the machine as the mere result of a boil-over because the boiling PCE escaped from the top of the machine mostly as foam with very little actual volume of PCE being discharged during such a boil- over event. Mr. Hedrick's testimony is corroborated by that of Dr. Mercer, an expert in hydrogeology, dense, non-aqueous phase liquid behavior (DNAPL), and the fate and transport of chemicals in the subsurface environment, presented by Jura. Dr. Mercer established that in a boil-over event, the PCE escaping from the top of the machine is pure PCE, chemically, but it escapes in the form of a foam or mist very near the boiling point of approximately 250 Fahrenheit. Because it is very volatile, most of the PCE escaping from the machine in a boil-over event, due to its volatility enhanced by its high heat, dissipates into the atmosphere. Whatever PCE did not volatilize would spread in a thin film over the floor of the facility and, because it was still a warm fluid, would continue to volatilize into the atmosphere. The small amount which did not volatilize would be washed into the floor drains and correspondingly diluted prior to entry into the surge tank, where it would be further diluted by the large volume of warm water present in the tank which would enhance dissolution and dilution. Consequently, the boil-overs would have produced only dissolved PCE entering the tank in small quantities, most of which would be flushed from the tank into the city sanitary sewer system through the outfall line exiting from the wall of the surge tank. Thus, the testimony of these witnesses establishes that only one spill of four to five gallons of PCE occurred in 1974, most of which was washed into the floor drains and into the surge tank. It was not established that the boil- over events materially contributed to the volume of PCE entering the surge tank during the dry-cleaning operations conducted in 1974 and early 1975. No PCE was shown to have been deposited in the surge tank after dry-cleaning operations ceased in 1974 or at the latest in early 1975 during the RCD ownership and operation of the facility. It was not shown that PCE was released or discharged to the environment by any other means since that time at or on the property or facility. Release of PCE to the Environment DER has thus established that some four to five gallons of PCE from a spill entered the surge tank in 1974 and that some minor quantities from boil-overs entered the tank through wash down of the laundry floor. DER also has the burden to establish the next evidentiary link; that the PCE was released from the surge tank to the environment. The surge tank consists of a poured concrete floor with concrete-block walls with a plaster or cement covering on the outside of the tank. The concrete-block mortar joints and concrete with which the tank is constructed are porous materials, although the specific porosity has not been quantified. The extent of coverage, the integrity and continuity of the exterior cement or plaster layer over the outside of the tank, and for the life of the tank, is not established. The surge tank was constructed in 1969 in conjunction with the construction of the laundry building. It is 20 feet long by 10 feet deep by 9 feet wide. It is stipulated that the surge tank leaks wash water at some rate because of the porosity of the materials and because of cracks and fissures which have opened in its walls since its construction. Testing of the tank in 1971 revealed that it leaked, at that time, at the rate of 6.5 gallons per day. No evidence establishes what the leakage rate before 1991 might have been. There is no direct evidence of a release of PCE from the surge tank to the soil or ground water. Michael Clark testified in this regard, as a member of the Operations Response Team of DER. In his opinion, DNAPL or "separate phase" PCE (undissolved PCE) had escaped from the tank into the ground water; however, he testified that he performed no calculations to determine the quantity of PCE which would have had to enter the surge tank in order to create a release of separate phase PCE. Mr. Clark assumed in the gravamen of his testimony that the contents of a 55- gallon drum of PCE had been released to the surge tank in a spill, in performing his analysis of the potential for release of PCE from the surge tank. He admitted, however, that the release of 55 gallons of PCE had been only hypothetical and no evidence was presented in this case to establish that 55 gallons of PCE had been spilled or otherwise placed in the surge tank. Mr. Clark was neither offered nor qualified as an expert in hydrogeology or any other field of expertise which could establish that he had any expertise in the movement of chemicals in the environment or in ground water or soils, nor as to the chemical state of those chemicals while in the soils or ground water at any point in time. Mr. Clark's opinion that separate phase PCE was released to the soil and then the ground water from the surge tank and that it resulted in the contamination found in the public water supply wells at issue, as well as in the monitoring wells, is not supported by competent, substantial evidence. Inasmuch as Mr. Clark's opinion testimony did not demonstrate, by preponderant evidence, that separate phase PCE was released to the environment from the tank and there being no direct evidence of such a release, then inferential evidence must be used to establish whether such a release occurred. PCE was shown to be present in the tank in 1974 based upon the above-described events. The presence of PCE has been detected in the ground water immediately downgradient of the Crown property, as well as in the public drinking water supply wells and the monitoring wells, downgradient of the Crown facility. That evidence, together with the evidence concerning the porous nature of the materials of which the tank is constructed and the tank's condition, which has deteriorated over time, is sufficient to support an inference that some undetermined quantity of dissolved PCE escaped from the surge tank over some undetermined points or periods of time. DER, however, did not adduce evidence which could establish an inference that a release of dissolved PCE or separate phase PCE from the tank would be sufficient to cause the violations of the MCL for PCE found at the monitoring points in the vicinity of the Crown property nor is the evidence sufficient to establish when the releases, if any, which may have contributed to a violation of the MCL for PCE at the monitoring or sampling points may have occurred. The lack of sufficient evidence to support such an inference is pointed out by the testimony of witnesses Mathias and Hedrick, testifying for DER, concerning the quantity of PCE which entered the tank and by the testimony of Jura's expert witness, Dr. James Mercer, regarding the behavior of PCE upon entering the tank and upon a release to the environment. The finding that the evidence is insufficient to support an inference that the tank released sufficient PCE to cause a violation of the MCL for PCE is further supported by the evidence that DER did not exclude, through its PCE source investigation, other potential sources of PCE contamination in the ground water, other than Crown, particularly in view of the evidence concerning the cone of influence of the "east well" and the location of the contamination in the PW-9 well, located upgradient from the Crown facility. Dr. Mercer testified concerning the behavior of separate phase PCE with regard to the spill of four to five gallons of pure PCE from the holding tank, as found above. He established that because PCE is very volatile, much of the spill would have volatilized into the atmosphere, although at a slower rate than the boiling temperature of PCE released during boil-over events, as described herein. The spilled PCE, which did not volatilize, would have been washed down with a hose, diluting it and dissolving it in water prior to its entry into the floor drains and the surge tank. In the floor drains and in the tank, some of the PCE would have been entrained or bound up in the lint present in those locations; and some of the PCE would have made its way to the surge tank. Because of prior dilution and dissolution, a relatively small amount of pure PCE would have entered the surge tank. The presence of warm water in the tank would have promoted more dissolution and dilution of the chemical, such that most of the four to five gallons of pure PCE spilled would have become mostly dissolved PCE upon entry into the tank. Some of that would have then been washed out into a sanitary sewer system through the outfall line. Since separate phase PCE is denser than water, any of it in that form entering the tank would sink to the bottom of the waste water in the tank, coming to rest on the layer of sand, lint and other sediments on the bottom of the tank. Dr. Mercer established that any separate phase PCE from the referenced spill would thus form a layer on top of accumulated sediments at the bottom of the tank, approximately .14 inches thick, assuming that it was evenly distributed over the bottom of the tank. In order for separate phase PCE to penetrate the pore spaces in the sediments, it would have to displace the waste water or wash water already occupying those pore spaces. If the layer, established by Dr. Mercer, was as thin as .14 inches thick, such a thin layer would not penetrate the pore spaces of the sediments because they would be filled already with wash water. That thin layer of separate phase PCE would not exert sufficient hydraulic pressure to displace that water because of the capillary pressure barrier formed between the water in the pore spaces and the separate phase PCE layer on top of the sediments. The capillary pressure effect is the pressure difference between two liquids, which creates a capillary pressure barrier, inhibiting the penetration of separate phase PCE into the pore spaces of the sediments. Dr. Mercer testified that a thickness of 4.7 inches of separate phase PCE, resting on top of the sediments, would be necessary to overcome the capillary pressure barrier between the wash water and the pore spaces of the saturated sediments and the separate phase PCE layer lying on top of those sediments. Therefore, most of the separate phase PCE would remain as a layer on top of the sediments. Dr. Mercer opined that if separate phase PCE does not reach the sediments in the bottom of the tank in sufficient volume to maintain the movement of the chemical through that porous medium, the separate phase PCE, which does settle to the top of the sediments, will tend to dissolve over time, partially into the wash water above the layer of PCE at the bottom of the tank and partially into the water occupying the pore spaces within the layer of sediments in the bottom of the tank. Any separate phase PCE, which dissolves into the overlying wash water, will become extremely diluted. Eventually, most of that dissolved PCE would be discharged through the tank's outfall to the public sanitary sewer system. Any separate phase PCE, which is able to overcome the capillary pressure barrier and move into the pore spaces of the sediments, by displacing wash water within those spaces, would become trapped within those pore spaces, because of an effect known as "residual saturation". When a separate phase liquid moving through a porous medium is not of sufficient volume to maintain its movement, it tends to physically break apart into globules of separate phase liquid within those pore spaces. As more globules form within the spaces, the movement of the separate phase liquid decreases until at some point the flow stops. When the flow stops, the globules of separate phase liquid become trapped within the spaces. The point at which a sufficient percentage of pore spaces are filled with globules of separate phase liquid is called "residual saturation". Because of the effect of residual saturation on any separate phase PCE at the bottom of the tank, Dr. Mercer concluded that separate phase PCE within the pore spaces of the sediments would be unable to flow and would effectually be trapped in the sediments in the bottom of the tank until those sediments were removed, either through dissolution into the wash water in the tank as flushing occurs through use of the tank over time or when the sediments were removed during clean-outs of the tank. Therefore, little, if any, separate phase PCE could have been released from the tank to the environment. Dr. Mercer's testimony was unrefuted and thus demonstrates that most PCE entering the tank would dissolve into the wash water already present, flow through the outfall to the sewer system, or become dissolved in the free water and water occupying the pore spaces in the sediments at the bottom of the tank. The evidence supports the finding that little, if any, PCE would be released to the soil surrounding or underlying the tank as a result of the spill of four or five gallons of PCE from the dry-cleaning machine. No evidence was presented to establish the quantity of PCE which could have escaped from the tank as a result of the spill of four or five gallons of PCE into the tank nor was any evidence presented which would establish during what period of time the release to the environment may have occurred. Charles Ferst testified as an expert in environmental engineering concerning the amount of PCE which may be released from the tank over time. Mr. Ferst testified that the leakage rate of the surge tank likely increased over time until reaching the current rate established in the evidence of 6.5 gallons per day, as determined by the 1991 test. Although the surge tank leaked at earlier periods, Mr. Ferst could not determine when the tank started leaking and could not calculate the leakage rate at any period of time prior to 1991 nor could any other witness. Based upon standard construction practices and the materials used in the tank at the time of its construction in 1969, Mr. Ferst opined that the tank leaked more after 1980 than in earlier years. Using that assumption and the fact that the sediments in the bottom of the tank were cleaned out several times between 1974 and 1991, he calculated the maximum amount of PCE which could have escaped from the tank after 1980. Mr. Ferst's calculations, however, are based upon a number of unsupported assumptions. Although he establishes that the tank leaked more in later years than in earlier years, his calculations and assumptions do little to establish how much PCE may have been released during any particular period of time; and little weight can be given to his conclusions regarding the specific amounts of PCE allegedly released at particular periods of time. DER did not present any evidence concerning the amount of PCE which could have escaped from the tank, even assuming that the tank leaked since 1974, when it was shown that some PCE had been placed in the tank. DER failed to prove that any amount of PCE which may have leaked out of the tank was sufficient to cause a violation of the MCL for PCE, and it did not inferentially demonstrate that any PCE which may have leaked out of the tank caused a violation of the MCL, because it simply failed to show that the violation levels found in the various wells where samples were drawn, solely resulted from contamination emanating from the Crown tank. DER failed to adduce evidence sufficient to carry its burden of proving a violation of the ground water standard for PCE caused by a release of PCE from the Crown property. Source of Contamination DER must prove that a release of PCE from the tank caused or contributed to the PCE contamination found in the public water supply wells and the monitoring wells. Dr. Mercer testified that if it is assumed that the tank is a source of contamination and the PCE concentration data collected by DER is used, the travel time of PCE from the surge tank to one of the monitoring wells, MW-3, where the highest concentrations were found, would indicate a release occurring many years prior to 1969, the year in which the Crown building and surge tank were constructed. Dr. Mercer therefore concluded that the surge tank at the Crown facility was likely not the sole or even the primary source of PCE contamination found by DER. In attempting to determine the source of the PCE discovered in the subject water supply wells, DER conducted soil sampling in suspected areas of contamination. This soil sampling revealed only two significant areas of PCE contamination in soils, neither of which was near the Crown property. DER then also selected monitoring well locations based upon ease of accessibility in order to determine the source of the contamination quickly. The monitoring wells were placed in the deep, intermediate, and shallow zones of the aquifer system underlying downtown Pensacola. Near the Crown facility, however, the intermediate zone was not present; instead, there was a shallow zone separated from the deep zone by a confining unit of relatively-impervious material. DER demonstrated that the shallow, intermediate and deep aquifer systems within the downtown Pensacola area are contaminated with PCE and PCE-derived breakdown compounds at widely-varying concentrations. DER did not prove, however, that one or more discreet plumes of PCE contamination exist. Mr. Clark, testifying for DER, attempted to calculate the travel time of contaminants found in MW-3 based upon their being released to the ground water from the Crown facility. Although Mr. Clark indicated this to be, in his belief, between 1970 and 1980, he admitted that he only estimated the travel time of ground water, as opposed to PCE, from the Crown property. Moreover, he averaged high hydraulic conductivity values for monitoring wells quite distant from the Crown property, near PW-9, and ignored data from closer, more relevant wells. Dr. Mercer, however, testified that the method used by DER to calculate travel time, which relies on conductivity values too far away from the suspected source and wells of concern, and averages only those high-conductivity values, while ignoring more pertinent values, provides a less accurate result. Hydraulic conductivity values are used to calculate ground water velocities, which can then be used to calculate travel times over a certain distance. Dr. Mercer testified that using the hydraulic conductivity values obtained from monitoring wells in close proximity to an assumed source and which reveal the presence of PCE in significant concentrations, which DER did not do, produces a much slower ground water velocity than that calculated by DER because the hydraulic conductivity values used are much lower. Averaging the hydraulic conductivity values obtained from monitoring wells which indicated significant concentrations of PCE in close proximity to the Crown facility to calculate travel time for PCE produced an estimate of 37 years for PCE released from the surge tank to reach MW-3. Thus, the PCE would have had to have been released prior to 1969 when the surge tank and the laundry facility were built (or from a different location). Because of this, it was not definitively shown that the PCE found in MW-3 came from the surge tank at the Crown facility. Dr. Mercer's testimony, because of his higher level of training, expertise and experience in hydrogeology and the fate and transport of chemicals in ground water, is accepted over that of Mr. Clark. Mr. Ross Mitchell testified regarding DER's search, which he conducted for facilities within the downtown Pensacola area which used or could have been the sources of a release of PCE. That investigation apparently concentrated on dry-cleaning establishments because DER opined that PCE was commonly used in such operations. Mr. Mitchell described his source investigation as "quick and dirty". He indicated that he did not follow up with every lead that he developed and that he established a "ball park" area within which to conduct his investigation. In fact, his investigation concentrated on a specific geographic area, in which other DER personnel had told him high concentrations of PCE had been found in ground water. As part of his investigation, he relied upon verbal representations by owners and operators regarding whether their facilities had ever used PCE. He made no effort to confirm those representations, other than cross-checking, in some instances, whether a given facility had been identified by a PCE supplier as a facility to which it had supplied PCE. However, he did not obtain customer lists from suppliers of PCE and was only able to get fragmentary information from the suppliers. Mr. Mitchell made no effort to verify whether PCE had ever been used at many of the facilities he had identified. He simply looked for readily- available evidence. That investigation was completed before DER became aware that PCE had been used at the Crown facility. Once that knowledge was obtained, Mr. Mitchell assumed that it would be the source of the PCE contamination found. He did not follow up regarding any of the other facilities which were on his list of suspect locations. He acknowledged at hearing that several of the suspect facilities, other than Crown, had not actually been eliminated as potential sources and acknowledged that he had not considered possible sources, other than dry-cleaning establishments, such as refuse dumpsters at facilities which had been identified as using or having used PCE. He did no environmental sampling around dumpsters at such facilities to detect spillage and did not investigate any records of any of the facilities he had investigated to determine whether they had purchased or used PCE. Mr. Mitchell located four dry cleaners, all upgradient of the PCE contaminated drinking water wells operated by ECUA. Among the dry cleaners suspected as potential sources of the contamination, only the Crown facility was located hydraulically downgradient of PW-9. In order for the contamination to travel from the Crown surge tank to PW-9, the pumping regimen employed by ECUA's supply wells would have to reverse the direction of ground water flow or hydraulic gradient. Dr. Mercer's calculations demonstrated that the pumping regimen employed by ECUA could not have reversed the gradient so as to pull contaminants from the Crown facility upgradient to be captured by PW-9. Dr. Mercer and Mr. Clark both agreed that the "east well" pumps continuously throughout the year. PW- 9 does not pump continuously. When the "east well" is pumping, it will capture anything that would be in the subsurface in the vicinity of the Crown facility; and its capture zone would extend upgradient as far as PW-9. Mr. Clark admitted that he had no calculations to support his conclusion that ECUA's pumping of PW-9 could have reversed the gradient in the subsurface to draw contaminants from the Crown facility to PW-9. Accordingly, it is concluded that DER did not adduce sufficient evidence to prove that the Crown facility could be the source of contamination in PW-9. The source investigation conducted by DER was inadequate to definitively determine whether the Crown facility was the source of PCE contamination or not. DER did not collect adequate soil and ground water samples throughout the area of known contaminations so as to pinpoint a specific source or sources for the contamination. No soil samples were collected from the immediate area around potential sources identified in close proximity to PW-9, for instance, such as the other four dry-cleaning establishments. Instead, once DER found PCE in MW-3 in high concentrations, it apparently focused all of its efforts on the Crown facility, assuming it to be the source of contamination. There are other upgradient PCE users (TCE), identified in Exhibit 6 which have not been ruled out as sources by competent evidence and that exhibit also shows that there may be three older dry cleaning sites in the downtown area with underground solvent tanks, which the record does not prove to have been investigated and ruled out as sources. Since Crown was shown not to be the source of PCE contamination at PW-9, there could be sources of PCE contamination other than Crown which better account for conditions observed in the ground water in downtown Pensacola. DER simply failed in its investigation to adequately rule out other potential sources of contamination within the cone of influence of the public water supply wells, PW-6, PW-8, the "east well", and PW-9. It is as likely as not, for example, that PCE emanating from whatever source or sources contaminated PW-9 (potentially four different dry-cleaning establishments) was also drawn hydraulically downgradient and into the "east well" and other wells. The record reflects that the "east well", for instance, when it is pumping, has a capture zone which extends as far as and including PW-9. DER failed to adequately investigate that potential explanation, as well as other potential sources of the contamination, including the stormwater pond, and thereby failed to prove that contamination emanating from the Crown facility, more likely than not, caused the contamination observed in the ECUA wells, or at least all of it, to the extent of its violating the MCL for PCE in the sites sampled. DER also seeks to impose liability on the Respondents pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the current or former owner or operator at the time of disposal of any hazardous substance, as to a facility at which a release of hazardous substances has occurred. PCE is a hazardous substance, as that term is used in Section 403.727, Florida Statutes. However, Section 403.727, Florida Statutes, did not become effective until 1980; and PCE was not listed as a hazardous substance until 1984. DER has failed to prove in what quantity or during what period of time PCE may have been released from the surge tank at the Crown facility. It has established that PCE was only placed in the surge tank during 1974 and 1975 and not since, well before the effective date of this statutory provision and the listing of PCE as a hazardous substance. It has produced evidence from which it is inferred that a certain amount of dissolved PCE in laundry waste water leaked from the tank. It has not been established when the leakage started nor in what quantities PCE dissolved into the wash or waste water may have leaked into the surrounding soil, nor what rate (continuously increasing, decreasing, or static) the leakage occurred. Thus, the most that may be inferred is that leakage of dissolved PCE in an unknown concentration occurred sometime after 1974, but it has not been proven that PCE, as a hazardous substance, has been released into the environment during a specific period of time when each of the Respondents owned and/or operated the Crown facility. Thus, DER has failed to adduce evidence sufficient to carry its burden of proving a release of a hazardous substance, subjecting any of the Respondents to liability under Section 403.727, Florida Statutes. In any event, the Respondents were not on notice of the need to defend against a charge under that statutory section since the NOV and the Amended NOV did not inform them that such would be the basis of any purported liability alleged by DER. DER contended, for the first time at hearing, that the Respondents are liable for violation of the hazardous waste disposal rules. DER alleged at hearing that PCE, as a waste, is a listed hazardous waste, either as a spent solvent or a discarded commercial chemical. No such allegations were included in the NOV or the Amended NOV. However, Dr. Mercer established that any PCE which may have been released into the environment from the surge tank was in dissolved form and not as separate phase PCE. Dissolved PCE has not been shown to be a hazardous waste. Therefore, there is no evidence of record to support a finding that improper disposal of hazardous waste occurred at any point or points in time relevant to his proceeding. Moreover, Mr. Clark testified that he conducted a hazardous waste inspection of the Crown facility in 1982. Mr. Clark determined at that time that there was no hazardous waste being generated in the building or being stored in the building. DER has failed to demonstrate that any hazardous waste was generated or stored on the Crown property or disposed of into the surge tank at anytime by any of the Respondents. Finally, no evidence has been presented in this case that any of the Respondents had actual or constructive knowledge of the presence of PCE in the surge tank or of whether or not any release to the surge tank had occurred between 1971 and 1979 or any knowledge of any use or discharge of PCE to the surge tank prior to the commencement of DER's investigation in this action. Only RCD may be presumed to have had knowledge of the spillage of PCE which was discharged to the surge tank in 1974 and 1975, which entity was Jura's predecessor, ultimately merged into the corporation now known as Jura Services, Inc. Additionally, DER seeks in this proceeding only to be reimbursed for the costs of the investigation and tracing of the source of contamination and not for any natural resources damages nor any adjudication of the extent of liability for such damages, except insofar as the Order for Corrective Action which DER seeks to have imposed in this case reserves DER the opportunity to seek a determination after completion of corrective action of the extent to which the Respondents may be liable for natural resources damage, if any.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that DER enter a Final Order dismissing the Amended NOV against all Respondents. DONE AND ENTERED this 5th day of November, 1992, in Tallahassee, Leon County, Florida. Hearings Hearings P. MICHAEL RUFF Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 5th day of November, 1992. 5985 APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-3077 & 88- Petitioner's Proposed Findings of Fact 1-16. Accepted. Rejected as contrary to the preponderant evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not dispositive. Rejected as contrary to the preponderant weight of the Hearing testimony and evidence and subordinate to the Officer's findings of fact on this subject matter. Rejected for the same reason. Accepted but not in itself dispositive of the material findings issues and subordinate to the Hearing Officer's of fact on this subject matter. Rejected as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 23-27. Accepted but not in themselves materially dispositive. 28-30. Accepted but not in themselves materially dispositive. 31-34. Accepted. 35-40. Accepted but not in themselves materially dispositive. 41-50. Accepted but not in themselves materially dispositive. 51. Accepted but not in itself dispositive and subordinate to the Hearing Officer's findings of fact on this subject matter. 52-53. Accepted. Accepted as to the DER intent in placement of the wells. Accepted but not materially dispositive standing alone. Accepted. Accepted to the extent that Crown Laundry has been shown source by circumstantial evidence to be inferentially a of the contamination found in the various wells mentioned but not the sole source nor the source actually causing this made on violation of appropriate standards and otherwise proposed finding of fact is subordinate to those this subject matter by the Hearing Officer. Rejected as not entirely in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted as to the levels of chemical depicted in this the proposed finding of fact but not as to the material import of the proposed finding of fact concerning tank being the cause of the excession of the MCL standards. Accepted but not itself dispositive of material issues presented. 61-62. Accepted. Accepted except that the presence of these chemicals in excession of the MCL inside the tank does not constitute a violation of any pertinent legal authority. Accepted. Accepted to the extent that the walls of the tank are a continuing source of PCE. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted in terms of the amount spent but rejected otherwise as being, in effect, a conclusion of law. Rejected as constituting a conclusion of law and not a proposed finding of fact. Rejected as constituting a recitation of a portion of the fact pleadings at issue and not as a proposed finding of which is materially dispositive of any issue. Rejected as not constituting a material proposed finding of fact but rather a recitation or discussion of the remedies sought by the Petitioner. Rejected as immaterial in this proceeding. Accepted but not dispositive. Rejected as constituting a conclusion of law and not a proposed finding of fact. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant weight of the evidence. Respondent, American Linen Supply Company's Proposed Findings of Fact 1-21. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not as probative that leakage could have raised the level of PCE in the monitoring and production well samples above the maximum contaminant level. Accepted. Accepted but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not itself dispositive. 27-28. Accepted. Respondents, Belleaus and Crown Laundry and Dry Cleaners, Inc.'s Proposed Findings of Fact 1-21. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent, as speculative. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not itself dispositive of material issues. Accepted. Respondent, Jura Services, Inc.'s Proposed Findings of Fact 1-63. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 66-68. Accepted. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Jack Chisolm, Esq. Richard Windsor, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 William D. Preston, Esq. Thomas M. DeRose, Esq. HOPPING, BOYD, ET AL. 123 S. Calhoun Street P.O. Box 6526 Tallahassee, Florida 32301 Thomas P. Healy, Jr., Esq. MAYER, BROWN & PLATT 190 South LaSalle Street Chicago, Illinois 60603 John W. Wilcox, Esq. Derek B. Spilman, Esq. RUDNICK & WOLFE 101 East Kennedy Blvd. Suite 2000 Tampa, Florida 33602 Jeffrey C. Bassett, Esq. BARRON, REDDING, ET AL. Box 2467 Panama City, Florida 32401
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: WEST COAST REGIONAL WATER SUPPLY AUTHORITY (STARKEY WELLFIELD) The Authority is a nonprofit five-member interlocal entity created in 1974, pursuant to Section 373.1962, Florida Statutes, for the purpose of planning, designing and operating new sources of water supply to governmental entities in Pasco, Pinellas and Hillsborough Counties. Its members include the Counties of Pasco, Pinellas and Hillsborough and the Cities of St. Petersburg and Tampa. The City of New Port Richey also has a seat on the Authority Board. The Authority's revenues are presently derived entirely from the sale of water to its customers. It owns and/or operates five wellfields, some of which are connected by a water transmission pipeline to each other and to wellfields operated or owned by Pinellas County and the City of St. Petersburg. In 1984, the Authority supplied approximately 74 million gallons per day (mgd) to its customers and held consumptive use permits (CUPs) for a total of 94 mgd average and 144 mgd peak or maximum. The Authority anticipates that it will serve approximately 800,000 people in the year 1985. Its master plan, which was last updated in 1982, projects future water demands through 1995 and identifies alternative sources of supply to satisfy those demands. One of the wellfields presently operated by the Authority is the Starkey Wellfield located in Pasco County. The Starkey Wellfield property, located on some 5,400 or 6,947 acres, was acquired in phases by the Southwest Florida Water Management District (District) over a period of years beginning in the early 1970's. There are two remaining parcels which the District has contracted to acquire in 1985 and 1986. These parcels will be acquired under the "Save Our Rivers" program embodied in Section 373.59, Florida Statutes. The various contracts between the District and the Starkey family contain restrictive covenants which require that "the land remain, as nearly as practicable, in its natural state" and that water withdrawals be restricted so that they "do not substantially and/or permanently damage the lands adjacent to the area." In 1981, the District granted the Authority an exclusive license to operate a wellfield on the Starkey property provided that it maintain the wellfield "as nearly as practicable in its natural state." All cater produced from the property is to be for the water supply needs of the City of New Port Richey and Pasco County, except that those entities can authorize the sale of surplus water. Prior to the Authority's involvement with the Starkey Wellfield, the City of New Port Richey planned and constructed water supply facilities at the extreme western portion of the wellfield. Four wells were originally permitted for 3 mgd average and 4.5 mgd maximum. In 1979, in conjunction with Pasco County as a co-applicant, the permit was modified to provide for increased withdrawals of 8 mgd average and 15 mgd peak. This increase was not implemented due to contractual problems between the City and the County. Then, in December of 1981, the Authority became involved in the Starkey Wellfield. Pursuant to a Water Transfer and Management Agreement and a Water Supply Agreement, the City of New Port Richey's four existing wells were transferred to the Authority and the Authority was authorized to construct additional wells and sell the water to the City and Pasco County. As noted above, any surplus water could be sold to others. These agreements have a term of 35 years, with an option of a 35-year renewal period. If the agreements are terminated, the facilities are to revert back to the City of New Port Richey and Pasco County. In 1982, the Authority, the City of New Port Richey and Pasco County obtained the present CUP authorizing the construction and operation of a total of 14 wells and permitting withdrawals at an average annual rate of 8 mgd and a maximum daily rate of 15 mgd. This CUP expires on February 3, 1986. The ten presently operating wells have the capacity to produce 22 mgd. The financing arrangements for the construction of the Starkey Wellfield are not sufficient to complete construction. There is a shortfall of about $720,000, which the Authority plans to make up in revenues from the facility. On December 20, 1983, the Authority, with the City of New Port Richey and Pasco County as co-applicants, applied to the District for a modification of the 1982 CUP to increase withdrawals from 8 mgd average, 15 mgd maximum to 11 mgd average and 21 mgd maximum. At the time, the Authority believed that the increases were justified by the projected water demands of the City and Pasco County. In preparing its water supply plan submitted to the District on March 1, 1984, the Authority determined that it would be feasible to interconnect the Starkey Wellfield with the Cypress Creek pipeline and other major production facilities. In order to finance this pipeline interconnection and again believing that there was sufficient demand in Pasco County and the City of New Port Richey to justify increased withdrawals, the Authority, along with the City and the County, amended the application to modify their CUP on March 23, 1984. This amendment sought average annual withdrawals of 15 mgd and maximum daily withdrawals of 25 mgd. Also requested was the relocation of 2 wells that have not yet been constructed. Between 1971 and 1982, five pump tests have been performed at the Starkey Wellfield, and monitor wells are installed throughout the property. Except for the northwest corner of the property, existing withdrawals have not changed the natural condition of the property. Utilizing these various tests and monitoring results to predict the hydrologic effects of the Authority's proposed increased withdrawals, the District found that the potentiometric drawdown and the water table drawdown at the requested rates would each increase to almost twice the drawdown at the currently permitted rates. The withdrawal of water will cause the level of the potentiometric surface to be lowered more than five feet outside the northern and southern boundaries of the Starkey Wellfield property. The one-foot water table drawdown anticipated from the increased withdrawals could have an adverse effect upon lands immediately adjacent to the north and west. Likewise, this one foot water table drawdown could cause adverse ecological effects on forests and wetlands within the Starkey Wellfield properties. Approximately 40 percent of the Starkey property is high quality wetlands. In June of 1984, a three-day field validation multi-pump test was performed for the Authority. These test results were not available to the District at the time it performed its evaluation. The June tests showed aquifer characteristics different than those previously thought to exist. A much higher transmissivity level was found and the differing leakance values throughout the property demonstrated that the aquifer beneath the Starkey Wellfield is not homogenous. A higher transmissivity level decreases the extent of potentiometric surface drawdown. After substituting the new aquifer characteristics found from the June pump tests, the Authority's computer modeling demonstrates no violation of District hydrologic rules with respect to potentiometric surface and water table drawdowns at the increased level of withdrawals. The Authority's ecologist did not feel that the increased withdrawals would adversely affect natural conditions on the Starkey property, stating that a one-foot water table drawdown is well within the adaptive range of wetland vegetation. In addition, the Authority will maintain its existing ecological monitoring plan on site. The District has not established regulatory levels for the rate of flow of streams or other water courses, for the potentiometric surface or for the surface water in the vicinity of the Starkey Wellfield. Deep monitor wells on the property indicate that there has been no increase in chloride concentrations. Increased withdrawals are not expected to induce saltwater encroachment. If it is found that the potentiometric surface at the Starkey property boundary is lowered more than five feet, an alternative pumping schedule can be put into effect to prevent that occurrence. The pattern of production can be changed by shifting to different wells during the dry season. Increased withdrawals will not lower off-site water tables, lakes or other impoundments by more than one foot, and the potentiometric surface will not be lowered below sea level. The Authority's proposed consumptive use of 15 mgd average would withdraw 2,777.77 gallons per acre per day if the Starkey Wellfield contains 5,400 acres, and 2,159.13 gallons per acre per day if it contains 6,947 acres. Its present permitted withdrawals average more than 1,000 gallons per acre per day. The Authority's proposed increased withdrawals will not interfere with any presently existing legal use of water. BEXLEY (CENTRAL PASCO WELLFIELD) Bexley owns 14,510 acres of land in Pasco County located immediately east of the Starkey Wellfield. The land contains improved pasture, crops, planted pine and some cypress heads and ponds. He presently holds a CUP authorizing a combined average annual withdrawal of 2,416,000 gallons per day with a maximum withdrawal of 11,520,000 gallons per day. Such withdrawals are permitted for agricultural irrigation purposes and come from five wells. In August of 1983, Bexley entered into a contract with Pasco County. The contract requires Bexley to produce and supply to Pasco County an average of 9 mgd of public supply water and a maximum of 13 mgd. Pasco County is given the exclusive right to purchase these amounts and, indeed, must pay for the water made available, whether it is accepted or not. The term of the agreement between Bexley and the County is 33 years. Pursuant to his contract with Pasco County, Bexley applied to the District on December 21, 1983 to modify his existing CUP. A decrease in agricultural withdrawals was requested, as were five additional wells to produce 10.0 mgd average and 13.5 mgd maximum for Pasco County's public water supply. The five additional wells are to be located on 10,848 acres of land, to be known as the Central Pasco Wellfield, located within the 14,510 acres owned or controlled by Mr. Bexley. The modification would result in total (agricultural irrigation and public water supply use) withdrawals of 11,881,000 gallons per day annual average and 23,580,000 gallons per day maximum. In order to determine the anticipated hydrologic effect of the proposed withdrawals, Bexley's hydrologist reviewed and analyzed previous studies of regional hydrogeology and other wellfields prepared by the District, the United States Geological Survey and private consultants. He also conducted a "slug test" and a single well pump test over a period of six days. The aquifer characteristics of the Bexley property were found to be within the range of values derived from other regional testing. Assuming an homogenous aquifer, these characteristics were used in computer modeling to predict the effect of increased withdrawals on and off the Bexley property. The five-foot potentiometric drawdown is confined to the Bexley property, as is the three-foot water table drawdown. The effects of any potentiometric surface and/or water table drawdowns on agricultural crops in the vicinity of the production wells can be offset by irrigation. No lake or other impoundment off-site will be lowered more than one foot. The proposed withdrawals will not cause the potentiometric surface to be lowered below sea level. Regulatory levels have not been established by the District for potentiometric surface, stream flows or surface water on the Bexley property. Although there was no deep monitor well testing done, salt water encroachment is not anticipated as a result of the proposed withdrawals. After an independent evaluation, the District staff also concluded that the proposed Bexley withdrawals would not violate the District's hydrologic rules. The proposed public water supply use of 10 mgd average from 10,848 acres will average 921.80 gallons per acre per day. The combined public supply and agricultural irrigation use of 11.8 mgd from 14,510 acres will average 818.78 gallons per acre per day. CITY OF ST. PETERSBURG (SOUTH PASCO WELLFIELD) The City of Saint Petersburg owns and operates the South Pasco Wellfield, located on a 589 acre site to the south of the Bexley property. This wellfield has been in operation since 1973, and the City has a CUP to withdraw water at the rate of 16.9 mgd annual average and 24 mgd maximum as part of a public supply system. This CUP expires on September 1, 1992. The CUP requires the City to balance production from its South Pasco Wellfield equally with its two other well fields -- Section 21 and Cosme-Odessa. Among the terms and conditions of the CUP are that three regulatory wells be monitored so as not to cause the cumulative weekly average elevations of the potentiometric surface of the aquifer to be lower than the regulatory level set for each well. One of the regulatory wells is located on State Road 54, about 1.5 miles south of the Bexley southern property boundary. The regulatory level set for that well is that the potentiometric surface not be below 42.0 feet above mean sea level on a cumulative weekly average basis. On a noncumulative weekly average basis, the elevations may be 37.0 feet above mean sea level. Since 1974, average water levels at the State Road 54 regulatory well have fluctuated from 44.8 feet to 49.4 feet. Bexley's proposed combined average withdrawals may cause a potentiometric surface drawdown of between 1.3 and 1.9 feet at the State Road 54 regulatory well. The City of Saint Petersburg presented evidence that if the City pumps at its permitted average of 16.9 mgd and Bexley pumps at its average of 11.8 mgd, the City will only be able to withdraw 14.1 mgd without violating the regulatory level for the State Road 54 well. However, this result was obtained by starting off with the normal water levels in the State Road 54 well as they existed in 1980-81, a particularly dry year, and then comparing them with the results obtained if Bexley were to pump its total combined average of 11.8 mgd. This methodology fails to take into account Bexley's permitted withdrawals of 2.4 mgd as they existed in 1980-81, and in effect, double-counted them by initially ignoring their impact on the 1980-81 water levels and adding them back in as a part of the new combined total. In addition, the exhibits and testimony offered by the City failed to demonstrate that the cumulative weekly average elevations would go below 42.0 feet if Bexley were pumping at its requested average rate. While the City of St. Petersburg did utilize its permitted average capacity in 1975, for the past five years it has averaged only between 10.1 and 12.3 million gallons per day from its South Pasco Wellfield. Even if the regulatory level of the State Road 54 well were in jeopardy of violation, it would be possible to shift the pumpage among the eight production wells to counter such a result. The Bexley property is located approximately 3.5 miles from the center of pumpage at the South Pasco Wellfield. THE OTTO POTTBERG TRUST PROPERTY The Otto Pottberg Trust Property, owned by the Pottberg family since 1936, is comprised of 8,000 acres of land located immediately north of the Starkey Wellfield. The property is used for cattle grazing and a nursery operation, and wildlife on the property is abundant. The intervenor Pottberg has observed that since the operation of the well field began on the Starkey property, the cattle ponds on the Pottberg property dry up and vegetation and grasses are adversely affected during the dry seasons. He has observed a noticeable decline in all lake levels. He fears that increased withdrawals from the Starkey well field would diminish the use of his property for cattle grazing and nursery operations, would create a fire hazard and would adversely affect plant, animal and human life on his property. The Authority's experts found no surface drawdowns which would extend into the Pottberg property. The District determined that the potentiometric surface drawdown resulting from the proposed increased withdrawals from the Starkey Well field would exceed five feet on the northern boundary--thus extending into the property owned by the Otto Pottberg Trust. Likewise, the water table drawdown of one foot extends beyond the property at the northwest corner. However, there was no evidence that there are lakes on the Pottberg property at or near the northwest corner of the Starkey property, or that there is an existing CUP well on the Pottberg property in the area where the potentiometric surface drawdown exceeds five feet. PASCO COUNTY'S WATER DEMANDS AND SUPPLIES Pasco County is legally authorized and required to provide an adequate public water supply for its citizens. Based upon per capita use and estimates of population growth, the quantity of public supply water needed by Pasco County has been estimated by various experts as follows: YEAR AVERAGE MGD MAXIMUM MGD 1985 11.3 20.3 1986 12.3 1988 12.8 28.6 1990 16.4 29.5 1993 18.8 40.8 1995 21.8 39.5 2000 27.2 49.0 In the year 1983, the Pasco County Utility Department actually utilized 8.1 mgd for public water supply purposes. Pasco County has a contract right and obligation to purchase the following amounts of water produced by the Authority at the Starkey Wellfield: YEAR AVERAGE AND MAXIMUM MGD 1985 7 1986 6.7 1987 6.4 1988 6.1 1989 5.8 1990 and thereafter 5.5 The City of New Port Richey also has an allocated entitlement to the remaining amounts of water withdrawn from the Starkey Wellfield under its current permit. The Water Supply Agreement for the Starkey Well field recognizes that the City and County will have increasing water supply needs, and provides that they may, upon giving the Authority two years prior notice, increase their entitlement. The Pasco County Utility Department also has 13 CUPs covering public supply wells located on or near the coast. These CUPs, which were renewed in May of 1984 and expire in May of 1992, authorize a total withdrawal of 4.54 mgd average. The majority of these wells are located in coastal areas along and to the west of the 10-foot potentiometric surface contour near the saltwater- freshwater interface. Wells west of the 10-foot contour line generally have high chloride levels. The County has experienced inefficiency in operating some of these wells, and they are considered suitable mainly for fire control and peaking purposes. A condition of the 13 CUPs requires a proportionate, or gallon by gallon, decrease of average day withdrawals should Pasco County acquire another source of public water supply. Pinellas County is contractually obligated to provide Pasco County with up to 10 mgd upon demand. Pasco County controls how much water it will take from the Pinellas County water system. This water is produced by the Authority from other wellfields located within Pasco County, is purchased by Pinellas County and then is transported to Pinellas County. Upon request by Pasco County, the water is then transported back up north again to Pasco County. The water travels approximately 25 to 40 miles from Pasco County to Pinellas County and back to Pasco County. The Pinellas County water system has sufficient capacity to continue to provide 10 mgd to Pasco County. Pasco County does not currently utilize the full 10 mgd, partially because such use would currently present difficulties in fulfilling its contractual obligation or entitlement from the Starkey Wellfield. The contract between Pinellas and Pasco Counties was not placed into evidence. No evidence was presented as to whether Pasco County is either able to or desires to eliminate or change its contract with Pinellas County. It was the position of the Pasco County Director of Public Works and Utilities that it would be more cost-effective to have an alternative source of public water supply. There was insufficient evidence produced at the hearing to determine if the Pinellas County water provided to Pasco County is more or less expensive than the rates presently charged by the Authority or by the contractual agreement between Bexley and Pasco County.
