The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is liable to Petitioner Department of Environmental Protection (Department) for penalties and costs for the violations alleged in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."3 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting the water quality of the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the St. Lucie River area near Laniger's WWTP is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2, at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. The Department notified Laniger that its WWTP was listed as a threat to the water quality of the lagoon system soon after the 1991 report was issued. The Department's 1991 report concluded that the solution for package plants threats was to replace them with centralized sewage collection and treatment facilities. To date, over 90 of the package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter [sic] 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." Most of the parties' evidence and argument was directed to the following requirements of the administrative order: Beacon 21 WWTP shall connect to the centralized wastewater collection and treatment within 150 days of its availability and properly abandoned facility [sic] or provide reasonable assurance in accordance with Chapter 62-620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System and will not cause pollution in contravention of chapter 403, F.S. and Chapter 62-610.850 of the Florida Administrative Code. * * * (3) Beacon 21 WWTP shall provide this office with semi annual reports outlining progress toward compliance with the time frames specified in paragraph 1 of this section, beginning on the issuance date of permit number FLA013879-002-DW3P. The administrative order contained a "Notice of Rights" which informed Laniger of the procedures that had to be followed to challenge the administrative order. Laniger did not challenge the administrative order. As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. The force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad. Correspondence Regarding Compliance Issues On August 21, 2001, following an inspection of the Laniger WWTP, the Department sent Laniger a letter that identified some deficiencies, one of which was Laniger's failure to submit the semi-annual progress reports required by the administrative order. Reginald Burge, president of Laniger and owner of the WWTP, responded by letter to William Thiel of the Department, stating that, "All reports were sent to the West Palm Beach office. Copies are attached." Mr. Thiel testified that the progress reports were not attached to Laniger's letter and he informed Laniger that the reports were not attached. Mr. Burge testified that he subsequently hand-delivered the reports. At the hearing, it was disclosed that Laniger believed its semi-annual groundwater monitoring reports satisfied the requirement for progress reports and it was the monitoring reports that Mr. Burge was referring to in his correspondence and which he hand-delivered to the Department. Laniger's position in this regard, however, was not made clear in its correspondence to the Department and the Department apparently never understood Laniger's position until after issuance of the NOV. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, the Department received a response from Laniger's attorney, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. It was also stated in the letter from Laniger's attorney that "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] Order."4 On May 29, 2003, the Department replied, pointing out that the administrative order had found that reasonable assurance was not provided at the time of the issuance of the permit in 1999, and Laniger had made no "improvements or upgrades to the facility." The Department also reiterated that the progress reports had not been submitted. On September 29, 2003, the Department issued a formal Warning Letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The progress reports were not mentioned in the Warning Letter. The Department took no further formal action until it issued the NOV in August 2005. Count I: Failure to Timely File for Permit Renewal and Operating Without a Permit Count I of the NOV alleges that Laniger failed to submit its permit renewal application at least 180 days prior to the expiration of the 1999 permit, failed to obtain renewal of its permit, and is operating the WWTP without a valid permit. The date that was 180 days before the expiration of the 1999 permit was on or about February 27, 2004. Laniger did not submit its permit renewal application until February 15, 2005. In an "enforcement meeting" between Laniger and the Department following the issuance of the warning letter in September 2003, the Department told Laniger that it would not renew Laniger's WWTP permit. It was not established in the record whether this enforcement meeting took place before or after February 27, 2004. When Laniger filed its permit renewal application in February 2005, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger requested that the Department to act on the permit application, and the Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." Laniger filed a petition challenging the permit denial and that petition is the subject of DOAH Case 05-1599, which was consolidated for hearing with this enforcement case. Laniger's permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Count II: Failure to Submit Progress Reports Count II of the NOV alleges that Laniger failed to comply with the requirement of the administrative order to provide the Department with semi-annual reports of Laniger's progress toward connecting to a centralized sewage collection and treatment facility or providing reasonable assurances that continued operation of the WWTP would not be a threat to the water quality of the lagoon system. Laniger maintains that its groundwater monitoring reports satisfied the requirement for the semi-annual progress reports because they showed that the WWTP was meeting applicable water quality standards. The requirement for groundwater monitoring reports was set forth in a separate section of Laniger's permit from the requirement to provide the semi-annual progress reports. The monitoring reports were for the purpose of demonstrating whether the WWTP was violating drinking water quality standards in the groundwater beneath the WWTP site. They served a different purpose than the progress reports, which were to describe steps taken by Laniger to connect to a centralized sewage collection and treatment facility. Laniger's submittal of the groundwater monitoring reports did not satisfy the requirement for submitting semi-annual progress reports. There was testimony presented by the Department to suggest that it believed the semi-annual progress reports were also applicable to Laniger's demonstration of reasonable assurances that the WWTP was not a threat to the water quality of the lagoon system. However, the progress reports were for the express purpose of "outlining progress toward compliance with the time frames specified in paragraph 1." (emphasis added) The only time frame mentioned in paragraph 1 of the administrative order is connection to an available centralized wastewater collection and treatment facility "within 150 days of its availability." There is no reasonable construction of the wording of this condition that would require Laniger to submit semi-annual progress reports related to reasonable assurances that the WWTP is not a threat to the water quality of the lagoon system. Count III: Department Costs In Count III of the NOV, the Department demands $1,000.00 for its reasonable costs incurred in this case. Laniger did not dispute the Department's costs.
Findings Of Fact Upon consideration of the oral and documentary evidence in the record, as well as the pleadings and joint prehearing stipulation, the following relevant facts are found: Cast-Crete owns and operates a concrete batch plant in Hillsborough County, Florida, and manufactures concrete products such as reinforced beams, lintels, seals and drainage structures on the property. The plant is located on the west side of State Road 579, 3/4 mile north of Interstate 4, Section 28, Township 28 South, Range 20 East. The concrete products are manufactured in various forms which are laid out over a large portion of Cast-Crete's property. Lubricating oils are utilized to facilitate the removal of the product from the confining forms. During this process some of the lubricating oil is spilled onto the ground. Also, cleaning solutions containing degreasers are utilized to wash the concrete trucks eight to ten times per day. This solution ends up on the ground. Aggregate limerock (crushed limestone) is used in the concrete formulation process and is stored in large piles on the property. In order to contain the dust, water is sprayed on the aggregate piles 24 hours a day. The wash water from the continuous process of wetting the aggregate, other waste water and some stormwater is channeled through the property and into a settling pond in the northwest corner of Cast-Crete's property. This pond discharges continuously off the property by way of a concrete flume into a county maintained ditch. Water in the ditch travels in a westerly direction approximately 200 to 300 yards before it passes under Black Dairy Road, where the watercourse deepens and widens. The ditch discharges into a marshy area which drains into Six Mile Creek and other water bodies. The pond at the northwest corner of Cast-Crete's property is equipped with a metal skimming device to remove oils and greases floating on the surface of the pond. Nevertheless, it is estimated that approximately 100 gallons of oil per year are discharged by Cast-Crete. Oil and grease in the outflow water is occasionally above 5 mg/L. Oil and grease layers have been observed on water at both Black Dairy Road and Six Mile Creek, probably resulting from road run- off. Approximately 90 percent of the water discharged from the property is a result of the wetting or washdown of the aggregate piles. The excess water which comes from the aggregate piles is laden with dissolved limestone, lime and limestone particles. This limestone dust raises the pH level of the water. Because of the continued wetting of the aggregate, water flows through the settling ponds and off of Cast-Crete's property at a rate of approximately 4.8 gallons per minute, or 7,200 gallons per day or 2.5 million gallons per year. During a rain event, the flow increases markedly. Except during times of heavy rainfall, water flowing from the respondent's property provides a thin stream of water in the drainage ditch approximately six inches wide and several inches deep. The pH of the wastewater from Cast-Crete's discharge flume is between 10 and 11 units. During high volume flows, the pH remains at or above 11 units. An increase of one unit of pH in the wastewater means that the wastewater has become 10 times more basic, since pH is measured on a logarithmic scale. The natural background of unaffected streams in the area of and in the same watershed as the Cast-Crete property is less than 8.5 units. Specific conductance or conductivity is the measure of free ions in the water. Typical conductivity readings from other water bodies in Hillsborough County range between 50 and 330 micromhos per centimeter. The specific conductance of Cast-Crete's wastewater ranges from 898 to 2000 micromhos per centimeter. This is due to the presence of calcium carbonate and calcium hydroxide in the water. Blue-green algae is the dominant plant species in the ditch between the Cast-Crete discharge flume and the first 150 meters of the ditch. A biological survey of the ditch system indicates that the diversity of species east of Black Dairy Road is low. This is attributable in part to the high pH of the wastewater. The low diversity can also be attributed to the fact that the County maintains the ditch by use of a dragline on an annual basis. Background samples from a site within one mile to the northwest of the Cast-Crete property were taken. The site (a stream passing under Williams Road) is an appropriate place to take background samples because the water there is unaffected by Cast-Crete's discharge or other man-induced conditions. The pH background sample ranged from 4.6 units to 5.1 units. The specific conductance background samples ranged from 70 to 100 micromhos per centimeter. Samples taken from a site potentially impacted by Cast-Crete's discharge showed a pH level of from 6.35 to 7.37 units and specific conductance of from 592 to 670 micromhos per centimeter. Cast-Crete discharges water from its concrete plants operation without a permit from the DER.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered requiring respondent to submit a complete application for an industrial wastewater permit within thirty (30) days, and that, if it fails to do so, it cease discharging wastewater from its property until such time as an appropriately valid permit is issued by the DER. Respectfully submitted and entered this 3rd day of May, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1985. COPIES FURNISHED: David K. Thulman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building Blairstone Road Tallahassee, FL 32301 W. DeHart Ayala, Jr. 501 E. Jackson Street Suite 200 Tampa, FL 33602 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, FL 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DEPARTMENT OF ENVIRONMENTAL REGULATION, STATE OF FLORIDA, Petitioner, vs. CASE NO. 84-1647 CAST-CRETE CORPORATION OF FLORIDA Respondent. /
The Issue The issue in these consolidated cases is whether Respondent Florida Keys Aqueduct Authority ("FKAA") is entitled to issuance, by Respondent Department of Environmental Protection ("DEP"), of permit numbers 295404-018-DWC/CM ("Permit 18"), 295404-019-DWC/CM ("Permit 19"), 295404-025-DWC/CM ("Permit 25"), and 295404-027- DWC/CM ("Permit 27") (hereafter "Permits at Issue") authorizing the dryline construction of domestic wastewater collection and transmission systems in the lower Florida Keys.1/
Findings Of Fact The Parties Petitioners Petitioner Dump the Pumps, Inc. ("DTP") is a not-for- profit corporation incorporated under the laws of the state of Florida. DTP challenged the issuance of each of the Permits at Issue. Therefore, DTP is a Petitioner in each case in these consolidated proceedings. Petitioner Theresa Raven is a member of DTP and an individual petitioner in DOAH Case No. 14-2415, challenging the issuance of Permit 18. Petitioner Daniel Fitch is a member of DTP and an individual petitioner in DOAH Case No. 14-2415, challenging the issuance of Permit 18. Petitioner Jim Skura is a member of DTP and an individual petitioner in DOAH Case No. 14-2416, challenging the issuance of Permit 19. Petitioner Margaret Schwing is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. Petitioner Gail Kulikowsky is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. Petitioner Deborah Curlee is a member of DTP and an individual petitioner in DOAH Case No. 14-2420, challenging the issuance of Permit 25. Respondent Florida Keys Aqueduct Authority Respondent FKAA is a special district created by special act of the Florida Legislature. FKAA is charged with, among other things, providing wastewater service to the Florida Keys.4/ Ch. 98-519, Laws of Florida. Pursuant to this authority, FKAA is responsible for the design, construction, operation, and maintenance of the CRWS. FKAA is the applicant for the Permits at Issue being sought to implement the CRWS. Respondent Department of Environmental Protection Respondent DEP is the state agency charged with administering the domestic wastewater program in Florida pursuant to chapter 403, Florida Statutes, Florida Administrative Code Chapters 62-4, 62-604, and 62-555, and various industry standards manuals incorporated by reference into DEP rules. DEP's proposed agency actions to grant the Permits at Issue are the subject of these proceedings. The Projects Background and Overview The projects at issue are proposed to be located in the Florida Keys, in Monroe County, Florida. In recognition of, and to protect, the Florida Keys' unique, sensitive ecology, Congress enacted the Florida Keys National Marine Sanctuary and Protection Act, designating the Florida Keys, including the submerged lands and waters and living marine resources within those lands and waters, a National Marine Sanctuary. To further protect the Keys' unique habitat and environmental resources, Congress also enacted the National Key Deer Refuge, designating much of Big Pine Key and other areas within the lower Florida Keys as a refuge for the conservation and management of the Key Deer and other wildlife. 16 U.S.C. § 696. The State of Florida also has recognized the need to protect the Florida Keys' unique, sensitive environmental resources. To that end, portions of the Florida Keys are designated by DEP rule as Outstanding Florida Waters. Fla. Admin. Code R. 62-302.700(9). Additionally, the Florida Legislature has designated the Florida Keys an Area of Critical State Concern ("ACSC"). § 380.0552, Fla Stat. A stated purpose of the ACSC designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater management facilities that meet the requirements of section 403.086(10), Florida Statutes. § 380.0552(2)(i), Fla. Stat. The June 2000 Monroe County Sanitary Master Wastewater Plan ("Master Plan"), which was prepared as directed in the Monroe County Comprehensive Plan, addressed elevated nutrient levels in Monroe County nearshore waters resulting from discharges of raw sewage and inadequately treated wastewater. A primary purpose of the Master Plan was to plan for a central wastewater collection and treatment system to serve portions of Monroe County. The Master Plan considered the potential use of a number of different types of wastewater systems, including gravity systems, vacuum systems, and low pressure systems. In 2003, Monroe County adopted Ordinance No. 027-2003, authorizing assessment of an annual wastewater fee on properties to be served by the wastewater facilities being installed to implement the Master Plan. In 2010, the Florida Legislature enacted section 403.086(10). In that statute, the Legislature found that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. The statute further finds that the only practical and cost-effective way to improve wastewater management in the Florida Keys is for the local governments in Monroe County——which includes FKAA——to timely complete the wastewater and sewage treatment and disposal facilities pursuant to the Master Plan. To that end, the statute mandates that certain wastewater facilities identified in the Master Plan, including those at issue in these proceedings, be completed by December 31, 2015. To implement the Master Plan and this legislative mandate, Monroe County and FKAA entered into an interlocal agreement, which establishes and specifies FKAA's responsibilities to design, construct, operate, and maintain the central wastewater collection and treatment system. The CRWS is a component of this central wastewater collection and treatment system. It will serve the Cudjoe Regional Wastewater Service Area, which covers portions of Lower Sugarloaf Key, Upper Sugarloaf Key, Cudjoe Key, Summerland Key, Ramrod Key, Little Torch Key, and Big Pine Key. The CRWS consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and a wastewater treatment plant. These proceedings only involve challenges to certain components of the wastewater collection system. The transmission system permit previously was challenged, but that case was dismissed before the final hearing.5/ The wastewater treatment plant is not at issue in these proceedings. Project Planning and Design In furtherance of its responsibilities under the Monroe County interlocal agreement and the 2010 legislation, FKAA engaged Mathews Consulting, Inc. ("Mathews") to undertake planning, design analysis, and preliminary design for the CRWS wastewater collection systems. Mathews prepared the Central Cudjoe Regional Wastewater Collection System Analysis of Alternative Wastewater Collection Systems, dated February 2009 ("Mathews Report"), setting forth the planning and design analysis for implementing the wastewater collection systems portion of the CRWS. A key aim of this analysis was to identify a cost-effective wastewater collection system design, considering project magnitude, physical features of the islands being served, system reliability, operational costs, and socioeconomic factors.6/ In arriving at the proposed design for the CRWS wastewater collection system, Mathews engaged in an exhaustive analysis of the reliability, functional feasibility, physical features and impacts, and affordability of various types of collection systems, including gravity systems, vacuum systems, low pressure systems, septic tank effluent pump systems, and onsite nutrient reduction systems.7/ System reliability, which encompasses environmental considerations, was a fundamental threshold consideration in Mathews' analysis. As part of its analysis of various types of wastewater collection systems, Mathews concluded that low pressure systems are reliable. Based on the Mathews Report, FKAA concluded that, given system reliability, a hybrid system constituted the best alternative for the CRWS. A hybrid system was the most cost- effective system over the 20-year planning horizon and fit within Monroe County's budget of approximately $150 million allocated for the project.8/ Facilities Authorized by the Permits at Issue The CRWS wastewater collection system is a hybrid system because it does not consist of only one type of wastewater system, but instead consists of a combination of types of systems. Specifically, the CRWS consists both of a gravity system, which is being implemented in more densely populated service areas, and a low pressure system, which is being implemented in remote, less populated service areas. These proceedings involve challenges to certain components of the low pressure system portion of the wastewater collection system. The low pressure system at issue in these proceedings consists of multiple components: a residential grinder pump and wet well located on each serviced property; a service pipe lateral from each residential grinder pump wet well to a local force main, which runs beneath the public right of way and conveys the wastewater to the neighborhood lift station; neighborhood/area lift stations containing additional grinder pumps to pump wastewater from the serviced neighborhoods or areas; and transmission mains to convey wastewater from the neighborhood or area lift stations to the wastewater treatment plant. Of these components, all but the transmission mains have been challenged by Petitioners as not meeting the applicable permitting requirements and standards. Permit 19 authorizes the dryline construction of the Upper Sugarloaf Key wastewater collection system. The project consists of 9,300 linear feet ("LF") of eight-inch polyvinylchloride ("PVC") SDR 26 gravity sanitary sewer; 31 sanitary manholes; two neighborhood grinder pump stations; 121 E/One simplex grinder pump stations and 13 E/One duplex grinder pump stations; 27,253 LF of two-inch force main; 1,837 LF of three-inch force main; and 4,737 LF of four-inch force main. Permit 19 constitutes a modification of a previously issued permit, Permit 6, which originally permitted the wastewater collection system for Upper Sugarloaf Key.9/ Permit 19 was sought because after Permit 6 was issued, Monroe County opted to fund additional gravity components of the Upper Sugarloaf Key wastewater collection system. Accordingly, Permit 19 has the effect of increasing the number of gravity sanitary sewer components (which are not at issue in these proceedings) and decreasing the number of low pressure system components of the Upper Sugarloaf Key wastewater collection system. Permit No. 25 authorizes the dryline construction of a wastewater collection system on Cudjoe Key. The project consists of 58,825 LF of eight-inch PVC gravity sanitary sewer; 222 sanitary manholes; 20 neighborhood grinder pump stations; 63 residential E/One low pressure simplex grinder pump stations and 11 E/One duplex grinder pump stations for commercial areas; 28,815 LF of two-inch HDPE SDR 11 force main; 8,615 LF of three- inch HDPE SDR 11 force main; 1,488 LF of four-inch HDPE SDR 11 force main; 1,298 LF of six-inch HDPE SDR 11 force main; and 2,316 LF of eight-inch HDPE SDR 11 force main. Permit 25 constitutes a modification of a previously issued permit, Permit 8, which originally permitted the wastewater collection system for Cudjoe Key.10/ Permit 25 has the effect of increasing the number of gravity sanitary sewer components (which are not at issue) and decreasing the number of low pressure system components of the Cudjoe Key wastewater collection system. Permits 19 and 25 collectively comprise the "inner islands" portion of the CRWS. Permit 18 authorizes the dryline construction of the Big Pine Key North wastewater collection system, to be located in north Big Pine Key. The project consists of 28,375 LF of eight- inch PVC gravity sanitary sewer; 108 sanitary manholes; six neighborhood grinder pump stations; 1,053 residential E/One low pressure simplex grinder pump stations; 11 commercial low pressure lateral connections; 5,267 LF of two-inch HDPE SDR 11 force main; 3,942 LF of three-inch HDPE SDR 11 force main; 11,918 LF of four- inch HDPE SDR 11 force main; 1,588 LF of six-inch HDPE SDR 11 force main; 236 LF of eight-inch HDPE SDR 11 force main; 69,403 LF of two-inch low pressure HDPE SDR 11 force main; 31,065 LF of three-inch HD3PE SDR 11 force main; 5,228 LF of four-inch HDPE SDR 11 force main; and 3,977 LF of six-inch HDPE SDR 11 force main.11/ Permit 27 authorizes the dryline construction of the Big Pine Key South wastewater collection system, to be located on south Big Pine Key.12/ The project consists of 59,651 LF of eight- inch PVC gravity sanitary sewer; 222 sanitary manholes; 15 neighborhood grinder pump stations; 355 residential E/One low pressure simplex grinder pump stations; 101 commercial low pressure lateral connections; 10,521 LF of two-inch HDPE SDR 11 force main; 14,155 LF of three-inch HDPE SDR 11 force main; 14,207 LF of four-inch HDPE SDR 11 force main; 5,339 LF of six-inch HDPE SDR 11 force main; 43,771 LF of two-inch low pressure HDPE SDR 11 force main; 13,481 LF of 3-inch HDPE SDR 11 force main; and 317 LF of four-inch SDR 11 force main. Permits 18 and 27 collectively comprise the "outer islands" portion of the CRWS. The Permitting Process The Notification/Application for Constructing a Domestic Wastewater Collection/Transmission System, which has been adopted by DEP rule,13/ is the application form that must be completed and submitted to DEP to receive authorization to construct a domestic wastewater collection and transmission system. The overarching purpose of the dryline construction permitting process is to ensure that the collection/transmission system is designed in accordance with applicable DEP rule standards, which incorporate reasonable industry standards, so that once the system becomes operational, it functions as intended and does not harm the environment. The application form includes a list of 84 requirements, some——but not necessarily all——of which apply to a specific project. The form requires the applicant's certifying engineer to initial the space next to each applicable requirement, signifying that the requirement is met. The application form also requires the engineer responsible for preparing the engineering documents to sign and seal the application, signifying that the engineer is in responsible charge of the preparation and production of the engineering documents for the project; that the plans and specifications for the project have been completed; that the engineer has expertise in the design of wastewater collection/transmission systems; and that to the best of the engineer's knowledge and belief, the engineering design complies with the requirements of chapter 62-604.14/ Once the application form is submitted, DEP permitting staff reviews the application and determines whether items on the application form and any materials submitted to support those items are incomplete or need clarification. In that event, staff sends the applicant a request for additional information ("RAI"), requesting the applicant to provide additional information to address incomplete or unclear aspects of the application. Once the applicant has provided information sufficient to enable DEP to determine whether to issue or deny the permit, DEP determines the application complete and reviews the project for substantive compliance with all applicable statutory and rule permitting requirements. DEP is authorized to issue the permit, with such conditions as the Department may direct, only if the applicant affirmatively provides reasonable assurance, based on the information provided in the application, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules proposed in the application. Fla. Admin. Code R. 62-4.070(1). If the applicant fails to provide such reasonable assurance, the permit must be denied. Conversely, if the applicant provides such reasonable assurance, it is legally entitled to the permit and DEP must issue the permit. Once the dryline collection/transmission system has been constructed, the permittee must obtain certification from DEP to operate the system as a wetline that pumps wastewater to the treatment plant. To obtain certification, the permittee must provide DEP with an operation and maintenance ("O & M") manual establishing the operation and maintenance protocol for use of the system. Proposed Wastewater Collections Systems FKAA, as the applicant for the Permits at Issue, retained Mathews to design the wastewater collection systems for the "inner islands" and to prepare and submit the applications for these systems to DEP on FKAA's behalf.15/ In preparing the applications for these wastewater collection systems, David Mathews, a licensed professional engineer in Florida employed with Mathews Consulting, completed the application forms for each system. In doing so, Mathews initialed the application checklist, indicating that all applicable requirements were met; signed and sealed the application documents where and as required; and signed and sealed the certification that he is the engineer in responsible charge of the preparation and production of the engineering documents for the project. Initialing the checklist also indicates that the plans and specifications for the project were complete; that Mathews has expertise in the design of wastewater collection/transmission systems; and that to the best of Mathews' knowledge and belief, the engineering design for the application complies with the requirements of chapter 62-604. Mathews submitted the application for the Upper Sugarloaf wastewater collection system16/ to DEP on March 13, 2014, and submitted the application for the Cudjoe Key wastewater collection system17/ to DEP on April 3, 2014. FKAA retained Chen Moore and Associates ("Chen Moore") as the design engineer and Layne Heavy Civil as the contractor for the wastewater collection systems for the "outer islands." On behalf of FKAA as the applicant, Chen Moore prepared and submitted the applications for these systems.18/ Oscar Bello, a licensed professional engineer in Florida, previously employed by Chen Moore,19/ prepared and completed the application forms for each wastewater collection system for the outer islands. In doing so, Bello initialed the application checklist, indicating that all applicable requirements were met; signed and sealed the application documents where and as required; and signed and sealed the certification that he is the engineer in responsible charge of the preparation and production of the engineering documents for the project. Initialing the checklist also indicated that the plans and specifications for the project were complete; that Bello has expertise in the design of wastewater collection/transmission systems; and that to the best of Bello's knowledge and belief, the engineering design for the application complies with the requirements of chapter 62-604. Chen Moore submitted the application for the north Big Pine Key wastewater collection system20/ to DEP on February 12, 2014, and submitted the application for the south Big Pine Key wastewater collection system on April 21, 2014.21/ Each wastewater collection system proposed in the applications is comprised of a gravity system and a low pressure system. As previously noted, the gravity systems are proposed for use in the more densely populated portions of the areas to be serviced by the systems, and the low pressure systems are proposed for use in the less densely populated areas to be serviced by the system. The low pressure systems are comprised in part of progressive cavity pumps manufactured by Environment One Corporation referred to as "E/One" grinder pumps. Each residence served by a low pressure system will be served by an E/One grinder pump and wet well housing the grinder pump located on the serviced property.22/ The grinder pump and wet well are buried, with the top portion positioned slightly above ground to vent gases and prevent surface water flow into the wet well. The grinder pump contained within the wet well is continuously submerged. The pump is connected to an electrical panel inside or outside of the residence, so that the residence provides the electricity to power the pump. Wastewater from the residence flows through a service line into the wet well housing the grinder pump. Once the wastewater reaches a certain level in the wet well, the pump turns on and pumps the wastewater out of the wet well into the force main located under the neighborhood street. E/One grinder pumps are used in wastewater collection systems throughout the United States, including low pressure systems located in other parts of the Florida Keys. They are recognized in the Alternative Wastewater Collection Systems manual, a 1991 publication of the United States Environmental Protection Agency, as appropriate for use in low pressure wastewater collection systems. To prevent wastewater backflow into the residential wet wells, check or safety valves are located in the lines conveying the wastewater from the wet wells and at the street right-of-way where the service lines connect to the neighborhood force main. The low pressure systems also contain piping components consisting of service laterals, local force mains, and transmission mains, of various diameters comprised of extruded high density polyethylene ("HDPE"). HDPE pipes are flexible and are pieced together by welding section ends together. They do not have joints with rubber gaskets, which may shrink, deteriorate, or leak over time. Due to their flexibility, HPDE pipes can be horizontally drilled under roadways and wetlands, eliminating the need to disturb the surface and to dewater in order to lay the pipes. As such, these pipes are particularly suitable for projects in which the pipes will be placed in areas having roadways or surface development, or in areas that are environmentally sensitive or have a high water table, such as the Florida Keys. The low pressure systems also feature neighborhood/area lift stations. The residential grinder pumps generate sufficient force to pump the wastewater collected in the neighborhood force mains to neighborhood/area lift stations.23/ Each lift station contains a series of submersible grinder pumps that activate based on wastewater level in the lift station. The lift stations are designed and located to pump wastewater from the serviced neighborhoods or areas to transmission mains that ultimately convey the wastewater to the treatment plant. For each of the proposed wastewater collection systems, the system capacity exceeds 100 gallons per day per capita. Exceeding the 100 gallons per day flow quantity is permissible, per the application form, if the applicant is able to better estimate the flow using water use data or other justification. Here, FKAA estimated the stated system capacity for each application based on historic actual water use data, which provides a more accurate estimate of wastewater system capacity; accordingly, the proposed systems are not limited to a design capacity of 100 gallons per day per capita. Review and Proposed Issuance of the Permits at Issue Upon receiving the applications from Mathews Consulting and Chen Moore, DEP staff reviewed them for compliance with all applicable statutory and rule requirements and standards. DEP's review included a substantive design accuracy review by two licensed professional engineers in Florida, each having extensive wastewater systems design permitting experience. Ultimately, DEP determined that FKAA provided reasonable assurance that each wastewater collection system for which FKAA submitted an application met the applicable statutory and rule requirements and standards. Accordingly, DEP issued a Notice of Intent to Issue for each of Permits 18, 19, 25, and 27. At the final hearing, DEP's assistant director for the Southern District and a wastewater systems design expert, Al McLaurin, opined that FKAA had provided reasonable assurance to support the issuance of Permits 18, 19, 25, and 27. Mr. McLaurin persuasively testified that, based on results of the Little Venice Water Quality Monitoring Report showing a substantial improvement in water quality in canals of a subdivision as a result of installation of a central wastewater system, implementing the CRWS should result in a substantial improvement in water quality in the nearshore waters of the Florida Keys. Establishment of Prima Facie Entitlement to Permits at Issue The relevant portions of each of the permit files, including the permit application, supporting information, and Notice of Intent to Issue for each of the Permits at Issue were admitted into evidence at the final hearing. With the admission of these documents into evidence, FKAA established its prima facie case demonstrating entitlement to each of the Permits at Issue. See § 120.569(2)(p), Fla. Stat. The Challenges to the Permits at Issue Once FKAA demonstrated prima facie entitlement to the Permits at Issue, the burden shifted to Petitioners to present evidence proving their case in opposition to the Permits at Issue.24/ See id. To prevail in these proceedings, Petitioners bear the ultimate burden of persuasion to prove their case by a preponderance of the competent substantial evidence. They have raised numerous bases that they contend mandate denial of the Permits at Issue. As an overarching matter, Petitioners argue that DEP's review of the applications for the Permits at Issue was not sufficiently rigorous, and that as a result, DEP did not accurately review the applications, did not catch errors or require the projects to adhere to the appropriate permitting standards and requirements, and incorrectly determined that FKAA provided reasonable assurance for issuance of the Permits at Issue. Petitioners base their argument in part on McLaurin's testimony that DEP's review is "cursory." However, following this characterization, McLaurin went on to describe the nature and depth of agency review to which the applications were subjected. DEP review staff reviewed the applications to ensure that the projects were accurately designed and will function without causing adverse environmental impact as required by the applicable permitting rules.25/ DEP's review process does not entail re- designing or re-engineering the project, or questioning the design engineer's judgment on design matters, as long as the projects are accurately designed and functional in accordance with the applicable permitting requirements and standards. When inaccuracies or incomplete items are discovered in the review process, they are addressed with the applicant through the RAI process.26/ If the deficiencies are not addressed in a manner sufficient to meet the applicable permitting requirements and standards, the permit is denied. As a matter of practice, DEP relies, to a large extent, on the design engineer's certification that the system is accurately designed according to the permitting standards and requirements——as is authorized and appropriate pursuant to the certification provisions on the application form, rules 62-604.300 and 62-4.050(3), chapter 471, and Florida Board of Engineering rules. Accordingly, the undersigned rejects the contention that DEP's review of the applications for the permits at issue was insufficient. Scouring Velocity Petitioners allege that the system, as designed, will not achieve a two-feet-per-second ("2 fps") minimum wastewater flow rate, such that it will experience insufficient velocity to scour and prevent accumulation of solids in the pipes. In support, Petitioners presented the testimony of Donald Maynard, who relied on the application form, Force Mains section, item no. 78, which references the Recommended Standards for Wastewater Facilities, dated 1997——the so-called "Ten States Standards." Maynard testified that portions of the proposed systems do not meet the Ten States Standards, which establishes a 2 fps minimum flow rate, the minimum he claimed is necessary to prevent sedimentation and plugging of the systems piping. On this basis, Petitioners contend that the systems do not meet the mandatory regulatory requirements regarding minimum flow rate. However, pursuant to DEP rules, the Ten States Standards manual does not mandatorily apply to this project. As previously noted, the CRWS is an "alternative collection/transmission system" under DEP rules because it is "not comprised of strictly conventional gravity sewers, pump stations, and force mains." Fla. Admin. Code R. 62-604.200(1). Rule 62-604.400(4) states: "[t]he manuals referenced in rule 62-604.300(5)(b), (c), and (j), F.A.C., shall be used in the evaluation of the design and construction of alternative collection/transmission systems in Florida." The Ten States Standards manual is not among the list of technical manuals that mandatorily apply to alternative systems, so the standards established in those manuals are not mandatory regulatory standards, but may be used as guidance. Thus, the 2 fps minimum flow standard established in the Ten States Standards is not a requirement applicable to the Permits at Issue. As such, item no. 78 on the application form, requiring a 2 fps flow rate based on the Ten States Standards, is inapplicable to these systems. Rene Mathews, president of Mathews Consulting, acknowledged that in some extreme street ends and cul-de-sacs, the systems will not meet the 2 fps flow rate. However, she credibly testified that this rate is not a requirement but may be used as guidance——and, in fact, was used as guidance in designing the wastewater collection system. She explained that in areas where 2 fps velocity cannot be achieved, FKAA will be required to clean more frequently. Mathews' testimony is consistent with that of Al McLaurin, who also stated that the 2 fps flow rate is not a mandatory regulatory standard and that DEP's rules afford discretion to allow it to permit systems having lower flow rates where, as here, the permittee provides reasonable assurance that it will clean and maintain the system's pipes with sufficient frequency to prevent them from becoming plugged. Oscar Bello, formerly of Chen Moore and the responsible engineer for the applications for the outer islands wastewater collection systems for which Permits 18 and 27 are proposed to be issued, concurred with Ms. Mathews' testimony regarding the inapplicability of the 2 fps standard. He also concurred in the need for additional cleaning in areas where the 2 fps flow rate will not be achieved. Mr. Gary Maier, a professional engineer supervisor with DEP's South District who manages wastewater permitting groups and reviews wastewater systems permit applications, also confirmed that the 2 fps flow rate is not a mandatory DEP regulatory requirement on which permit denial can be based. Ms. Mathews is a licensed professional engineer in Florida and has been practicing as a civil engineer for over 14 years. Her firm has handled over 150 wastewater projects, including the wastewater collection systems for the inner islands at issue in these proceedings. Over the course of her career, she has designed between 30 and 40 wastewater pump stations. Although she is not the engineer whose seal and certification appear on the applications for the inner islands wastewater collection systems, her firm designed, prepared, and submitted the applications for these systems, and she worked on these projects. She is knowledgeable about and understands the systems at issue. Mr. McLaurin is a licensed professional engineer in Florida with many years of engineering and engineering-related experience that includes wastewater systems design in the private and public sectors and wastewater systems applications review with DEP. Through his experience, he has gained extensive understanding of the statutes and DEP rules applicable to wastewater permitting. Although McLaurin was not directly involved in DEP's review of the applications for the Permits at Issue, he is thoroughly familiar with, and possesses complete understanding of, the permit applications and supporting documentation. Mr. Bello is a licensed professional engineer in Florida. He has approximately ten years of experience in infrastructure permitting in the public and private sectors. Bello is the design engineer responsible for designing the outer islands wastewater collection systems and preparing and submitting the applications to DEP on FKAA's behalf. As such, he possesses extensive, in-depth understanding of the systems' design and functionality. Mr. Maier is a licensed professional engineer in Florida with over 20 years of environmental regulatory experience, including extensive experience in interpreting and applying DEP's wastewater rules and reviewing wastewater systems permit applications. Mr. Maynard is a professional engineer licensed in Maine and Vermont, and has many years of engineering experience. Although he is experienced in a wide range of engineering-related fields, his experience appears primarily concentrated in hydrogeologic design, environmental site assessment, and contaminated sites assessment and remediation. He has some experience with septic system design and indirect discharge experience; however, that experience appears to be largely limited to on-site septic systems. He lacks experience in designing or implementing low pressure wastewater collection systems like those at issue in these proceedings. Maynard has no significant understanding of, and lacks experience in, interpreting or implementing Florida's wastewater statutes and rules. He was contacted to testify approximately two weeks before his deposition. He acknowledged that he spent only a few days reviewing pertinent documents and that he had not reviewed all of the information prior to being deposed. His testimony evidences that while he has extensive knowledge of engineering principles regarding fluids, piping, and pumps, he is only superficially familiar with the projects at issue and possesses very little understanding of the wastewater permitting rules applicable to these projects. The undersigned finds persuasive the testimony of Mathews, McLaurin, Bello, and Maier that the 2 fps flow rate is not a mandatory standard applicable to the projects authorized by the Permits at Issue, and that in areas of the systems in which a 2 fps flow rate will not be achieved, requiring more frequent cleaning to ensure that the pipes do not become plugged is adequate to meet DEP's rule requirements. The undersigned finds Maynard's testimony on this issue unpersuasive due to his lack of experience with projects similar to the CRWS wastewater collection systems, his lack of knowledge of and experience with DEP's wastewater permitting rules and requirements, and his lack of anything more than superficial familiarity with the projects at issue. Petitioners did not show that the Permits at Issue should be denied due to inadequate scouring velocity in violation of DEP rules and applicable technical manual standards and requirements. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, will not experience wastewater backups or releases into the environment as a result of inadequate scouring velocity. FKAA has demonstrated that the systems, in compliance with DEP rules and applicable technical manual standards and requirements, will have wastewater flow of sufficient velocity to scour and prevent sedimentation in the piping, and that in the few remote areas where the velocity may be lower than recommended, more frequent cleaning of the piping will prevent sedimentation. Pipe Separation Petitioners allege that the Permits at Issue violate rule 62-604.400(2)(g), which requires a minimum ten-foot horizontal separation distance between wastewater collection/transmission pipes and public water system pipes.27/ Petitioners presented the testimony of Donald Maynard to support their position. Maynard identified several locations in the Upper Sugarloaf and north Big Pine Key wastewater collection systems where the rule's horizontal separation distances between the wastewater lines and public water system lines are not met. In Petitioners' view, this constitutes a fatal flaw warranting permit denial. In rebuttal, Mr. Maier testified that a six-foot horizontal separation between the wastewater and public water systems pipes meets DEP's wastewater permitting rules. This is because the ten-foot separation distance established in rule 62- 604.400(2)(g) applies "[e]xcept as provided in subsection 62- 604.400(3)." Rule 62-604.400(3) provides, in pertinent part, that if there are conflicts in the separation requirements between wastewater collection systems and drinking water facilities established in rule 62-604.400(2) and those established in Florida Administrative Code Rule chapter 62-555, the requirements in chapter 62-555 apply. Rule 62-555.314(1)(g) states that new or relocated underground water mains shall be laid to provide a horizontal distance of at least six feet, and preferably ten feet, between the outside of the water main and the outside of any existing or proposed wastewater force main. DEP interprets these rules as establishing a minimum six-foot separation distance between public water system lines and wastewater lines, regardless of whether a new water line is being laid in proximity to an existing wastewater line, or vice versa. Maier explained that the purpose of requiring minimum separation distances between water and wastewater lines is to separate the lines a safe distance from each other to enable work on one line to be done without inadvertently damaging the other line. In recognition that construction practices have improved over the years, so there is less chance for such damage than when the rule initially was adopted, DEP amended the separation distance in the public water systems rule to six feet, but inadvertently failed to amend the wastewater collection system rule to reflect the same distance. In an effort to clarify that the six-foot minimum is the standard applicable to construction of wastewater lines as well as drinking water lines, DEP amended rule 62-604.400 to add subsection (3), which states that in the event of a conflict between the rules, the drinking water rule provisions (which establish the six-foot separation minimum) control. Petitioners contend that this interpretation is incorrect because rule 62-604.400(2)(g) does not conflict with rule 62-555. Petitioners assert that there is a logical basis for interpreting these rules as establishing different, non- conflicting standards: specifically, that the construction of new sewer lines near old, potentially leaking drinking water lines raises the potential for sewage to contaminate drinking water, whereas installing new water lines near old, leaking sewage lines raises the potential for drinking water to infiltrate sewage lines. Maier disagreed, persuasively testifying that there is no rational basis for the different separation standards in the rules; thus, DEP treats them as conflicting and the six-foot separation standard in rule 62-655 controls. Maier testified, credibly, that under any circumstances, both the new and old water lines are pressurized so any leakage will force water out of the lines rather than allowing sewage to infiltrate the lines. Per the explanation provided by Mr. Maier, DEP's interpretation of its own rules is reasonable and therefore is accepted.28/ Mr. Maynard's testimony is not afforded weight due to his lack of experience with and understanding of DEP's wastewater collection/transmission systems permitting rules. Conversely, based on his experience with DEP wastewater regulation over many years, Mr. Maier's testimony is deemed persuasive on the pipe separation distance issue. Petitioners failed to show that the Permits at Issue should be denied for noncompliance with applicable pipe separation requirements. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the wastewater collection systems proposed to be authorized by the Permits at Issue meet the applicable wastewater line and drinking water line horizontal distance requirements in DEP's wastewater collection system rules. Friction Coefficient Standard Petitioners allege that the friction coefficient of 140, also called the "C Factor,"29/ submitted as part of the wastewater systems design exceeds the maximum value of 120 established in the Ten States Standards, and, therefore, does not meet DEP's rule standard for this value. Petitioners assert that as a result of using too large a C Factor in the system design, head loss that occurs as the wastewater flows through the system pipes is underestimated, so the systems will not function as anticipated. As previously discussed, because the wastewater collection systems at issue in these proceedings are alternative systems, the Ten States Standards do not mandatorily apply. Accordingly, the C Factor of 120 in the Ten States Standards is inapplicable to the systems. The C Factor used in designing the systems was chosen based on the material that comprises the piping——here, HDPE, which has an industry standard C Factor of between 140 and 150. The systems were designed using the more conservative value in the allowed C Factor range for HDPE piping. Under any circumstances, the difference in system performance of using a 140 C Factor instead of a 120 C Factor in designing the system is negligible. Using HDPE piping for low pressure systems is standard, and the use of the 140 C Factor in the system design complies with the industry standard for such piping. Petitioners did not demonstrate that the use of a C Factor of 140 in the wastewater collection systems design violates DEP's applicable requirements and standards, or that the systems will malfunction due to underestimated head loss, causing environmental harm or property damage. FKAA demonstrated, by a preponderance of the competent substantial evidence, that using the 140 C Factor in the wastewater collection systems design complies with DEP rules and applicable technical manuals, and adequately addresses head loss due to friction. Thus, it is not anticipated that the systems will malfunction due to head loss and release sewage, causing environmental harm or property damage. System Design Capacity Petitioners allege that the wastewater collection systems, as designed, will have insufficient capacity to handle the volume of wastewater put into the system. The application form, item 1, requires the system to be designed based on an average daily flow of 100 gallons per capita plus wastewater flow for other specified uses, unless water use data or other justification is used to better estimate the flow. Rather than designing the system based on an assumed average daily flow of 100 gallons per capita, design engineers Chen Moore and Mathews Consulting instead used actual water consumption data from FKAA's historic water consumption records for the past four years on a bimonthly basis for each parcel that will be served by the systems. Overall calculations of daily flow were based on the assumption that every dwelling unit contributed to the flow. Water consumption was converted to gallons per day per equivalent dwelling unit ("EDU"), each house connected to the system was identified, and the average EDU per house was determined. Chen Moore and Mathews took a localized approach in determining flow rate per area contributing to the wastewater collection systems. Homes using water to irrigate landscaping were identified through aerial photographs and by on-the-ground surveys. The estimated amount of flow into the systems was reduced to address irrigation water consumption for landscaping that would not be returned to the wastewater flow from the dwelling unit. Petitioners' witness Donald Maynard testified that Census Bureau information provides a more accurate estimate of the actual population for purposes of system design capacity than relying on historic water use data. He opined that using historic water consumption data underestimates the amount of flow into the system because the data are based on historic population figures that are lower than the current population of the lower Keys. He also testified that considering landscape irrigation in estimating wastewater flow artificially reduced the estimate of wastewater volume that will flow into the systems. He concluded that these flow estimation methods were unreliable and resulted in undersized collection systems. Maynard acknowledged that he does not have any experience in designing low pressure sewer systems, that he did not perform any independent system design flow estimate calculations, that he did not independently research or investigate information relevant to determining system capacity, that he relied on information provided by others regarding Keys population trends, and that he had assumed, without verifying, that the Keys population has increased. In fact, the credible evidence showed that Monroe County's population, including certain areas of the lower Keys, decreased between 2000 and 2010. Rather than relying on general information, such as census data, to estimate system capacity, the CRWS system design engineers used years of parcel-specific data regarding actual water consumption to determine system capacity. This is a more precise and accurate method of determining system capacity than that suggested by Mr. Maynard. Petitioners have not shown that the systems' design capacity is insufficient to handle the volume of wastewater that will flow into them, in violation of DEP rules and applicable technical manual standards and requirements. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, have sufficient capacity to accommodate the amount of wastewater that will flow into and be conveyed by the systems, and therefore meet DEP rules and all applicable technical manual standards and requirements. Peaking Factor Petitioners also allege that the wastewater collection systems, as designed, are based on an incorrect peaking factor of 4.0, and, thus, are undersized to handle peak flow that occurs at certain times, such as seasonally when the Keys occupancy rate is greater than average or immediately following power outages. As a result, Petitioners contend, wastewater will back up into homes, onto the ground, and into groundwater, and will flow into surface and nearshore waters, causing environmental harm and endangering human health. Petitioners offered the testimony of Donald Maynard to support their position. Maynard testified that, based on a preliminary design study performed by Brown and Caldwell in 2008, the correct peaking factor for the collection systems is 4.5, rather than 4.0, as proposed. Oscar Bello, design engineer for the outer islands wastewater collection systems, explained that the 4.5 peaking factor recommended in the Brown and Caldwell study related to the capacity of the wastewater treatment plant,30/ not the collection systems. Bello testified, credibly, that using a peaking factor of 4.0 to design the wastewater collections systems is sufficient to address peak usage conditions and will not undermine the systems' performance under those conditions.31/ Mr. Bello's testimony was buttressed by testimony by Tom Walker, assistant executive director for FKAA. Walker explained that it is prudent to build in a larger safety margin for treatment plant capacity. This is to ensure that under extreme conditions, if all systems components are working at——or, in some places over——capacity, the flow into the plant does not exceed its capacity. As previously discussed, Mr. Bello has extensive experience in infrastructure permitting in the public and private sectors. As the design engineer responsible for the outer islands wastewater collection systems, he possesses great understanding of the design and function of these particular systems. Mr. Walker is a licensed professional engineer in Florida. He has been a practicing engineer since 1976 and has extensive experience with municipal wastewater systems in Florida, as well as in Texas and overseas. He has been employed by FKAA since 2006, and has been deeply involved in the design and implementation of the CRWS. The testimony of Bello and Walker was credible and persuasive regarding the adequacy of the peaking factor proposed for the systems. By contrast, Maynard is only superficially familiar with the systems at issue and lacks substantial experience with, and understanding of, the rules applicable to the systems. As such, his testimony on this issue was not persuasive. Petitioners failed to demonstrate that the peaking factor of 4.0 proposed for the wastewater collections systems at issue does not comply with any applicable regulatory standards or will result in undersized systems that will not function properly and will result in discharge of wastewater into homes and the environment. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems are designed to accommodate peak wastewater flows without malfunctioning, and that the peaking factor to which the systems have been designed meets DEP rules and all applicable standards and requirements. Quick Connect for Emergency Pump Out Petitioners allege that the system, as designed, violates DEP rules because it does not provide rapid pump out connection for the individual residential "pump stations" to enable them to be quickly accessed and pumped out in emergency circumstances. Petitioners posit that each individual residential single grinder pump and wet well constitutes a "pump station" and that DEP rules require every "pump station" to have emergency pumping capability. The term "pump station" as used in DEP's wastewater rules means a station consisting of two or more pumps, not an individual residential pump and wet well. This is apparent from the context in which the term is used in the Notification/Application Domestic Wastewater Collection/ Transmission form section titled "Pump Stations" and in the rules and technical manuals applicable to alternative collection systems. Mr. McLaurin confirmed that DEP rules do not require individual residential grinder pumps and wet wells to have emergency pumping capability. The lift stations serving the neighborhoods and other areas contain two or more pumps and thus are "pump stations" subject to the emergency pumping capability requirement. Ms. Mathews credibly testified, and other credible evidence in the record shows, that each lift station is equipped with a system that allows a pump to be dropped into the lift station, where a hose is extended and the pump is connected to the pump quick connect, enabling the wastewater to be pumped out of the station through the system pipes. A hatch must be opened in order to access the lift station to use the quick connect pump out system, but there is no credible evidence showing that this constitutes an impediment to rapidly engaging the pump out system. Petitioners have not demonstrated that the pump stations lack emergency pumping capability in violation of applicable DEP rules. FKAA demonstrated, by a preponderance of the evidence, that the neighborhood/area lift stations meet the DEP rule requirement to have emergency pump out capability. Explosion Potential of Pumps Petitioners allege that the residential grinder pumps and the neighborhood/area lift station grinder pumps are unsuitable for the conditions to which they will be exposed because they are not explosion-proof, and that including them in the systems design violates DEP rules, the Ten States Standards, the National Electrical Code ("NEC"), and the National Fire Protection Association ("NFPA") Standards. Specifically, Petitioners assert that methane will accumulate in the residential grinder pump wet wells and in the lift stations, and, as such, these areas are considered "Classified Hazardous Area, Class I, Division 2, Group 2" under NFPA Standards. Petitioners contend that the mechanics of the grinder pumps make them susceptible to explosion under such conditions, so they are not suitable for use as proposed in the systems. In support, Petitioners presented the testimony of Michael Boismenu, who opined that use of grinder pumps in this type of environment constitutes a violation of NEC section 501.125 for motors and generators. Boismenu testified that the grinder pumps have the potential to ignite if they are exposed to a hazardous environment, which includes areas in which combustible gases, such as methane, accumulate. As such, Boismenu opined that grinder pumps should be classified as "Class I, Division 1" under the NEC and NFPA Standards. Under this classification, grinder pump use in an environment in which combustible gases accumulate would violate the NEC. Contrary to Mr. Boismenu's position, the credible evidence, consisting of the testimony of Rene Mathews and supporting documentation, shows that the residential grinder pumps are "unclassified," per NEC section 820-11, table 4.2. This means that the risk of fire and explosion is so low that there is no requirement for any particular fire protection measures to be implemented in using the individual residential grinder pumps. Also contrary to Boismenu's position, Ms. Mathews' testimony and the supporting documents show that the neighborhood/area lift station grinder pumps and wet wells are classified as "Class I, Division 2" under the NEC and NFPA Standards. Under this classification, there is a potential for fire and explosion under abnormal circumstances, such as if the pumps were not operating properly.32/ To address this potential—— which is remote——the lift station grinder pumps' electrical components were specifically designed to meet the Class I, Division 2 standard and also will be continuously submerged, mitigating the risk of fire or explosion.33/ Mr. Boismenu is an engineer and previously was a licensed professional engineer in New York. He has extensive experience in the energy production field, but never has worked on a wastewater project similar to the CRWS and has no experience applying the NEC or NFPA standards to wastewater projects. He first received specific information from Petitioners on the projects at issue on or around September 9, 2014, so his familiarity with the projects is based on two weeks of review in preparation for his deposition. His testimony revealed that he lacks specific knowledge about, or understanding of, the electrical features of the individual residential or neighborhood/area lift station grinder pumps or their classifications under the NEC and NFPA Standards. By contrast, Ms. Mathews' testimony was specific, detailed, and accurate, and was buttressed by documentation addressing the NEC and NFPA Standards applicable to residential and neighborhood/area lift station grinder pumps. This evidence, which was credible and persuasive, demonstrates that the residential and neighborhood/area lift station grinder pumps do not pose a significant threat of fire or explosion, and, thus, meet DEP's rules and the NEC and NFPA Standards. As previously discussed, the Ten States Standards manual——which Petitioners contend imposes an "explosion proof" standard——does not mandatorily apply to these systems. DEP rules and technical manuals applicable to these systems do not impose such a standard. Accordingly, the fact that the grinder pumps are not completely "explosion-proof" is not a cognizable ground for denying the Permits at Issue. Petitioners did not demonstrate that the residential and neighborhood/area lift station grinder pumps violate DEP rules and applicable technical manuals, the NEC, or the NFPA Standards regarding potential for fire and explosion. FKAA demonstrated, by a preponderance of the competent substantial evidence, that using E/One grinder pumps in the wastewater collection systems does not present a substantial fire or explosion risk and does not violate DEP rules or applicable technical manual standards and requirements. Air Release Valves Petitioners allege that the wastewater collection systems, as designed, inadequately provide for the release of combustible gases from the collection lines. As a result, Petitioners contend, gases may become trapped in the lines, obstruct wastewater flow, create an explosion risk, and endanger the public health and safety. Petitioners presented Mr. Maynard's testimony to support this contention. Maynard testified that methane and hydrogen sulfide would be generated by the wastewater and would accumulate in pockets in the wastewater lines. According to Maynard, this is mostly a problem at high points in the lines, particularly if there is not enough velocity to purge the gas from the line. He stated that "normally, you would put in vents to allow that gas to escape." The evidence shows that wastewater collection systems design does, in fact, include measures for releasing air and gases from the system. Specifically, in compliance with DEP's Design and Specification Guidelines for Low Pressure Sewer Systems, the design provides for air release valves to be located at the high points in the lines and at dead ends in the system lines. It is standard practice to add air release valves to pipes as necessary during pipe installation because the best locations for the valves are more accurately determined during the installation process. FKAA provided specific protocol for ensuring the correct operation of these valves and will submit as-built drawings showing location and proper placement of air release valves when it requests certification to operate the CRWS. Petitioners did not prove that the wastewater collection systems, as designed, fail to adequately provide for the release of air and gases, in violation of DEP rules and applicable technical manuals. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, will include air release valves in compliance with DEP rules and applicable technical manuals. As such, gases will not accumulate and obstruct wastewater flow or explode. System Pressure Capacity Petitioners allege that E/One grinder pumps create pressure that exceeds the pressure capacity of the force main pipes, so that the pipes will burst and release sewage into the environment and onto property served by the pumps. In support, Petitioners presented the testimony of Donald Maynard and of Dr. Gunnar Hovstadius, both of whom testified that an E/One grinder pump34/ can generate pressures as high as 180 to 200 pounds per square inch ("psi"). According to both witnesses, if many grinder pumps are running simultaneously ——which they allege could occur as power is restored following a power outage——the pressure generated by the pumps could exceed the pressure capacity of the pipes, causing them to burst. Dr. Hovstadius relied on his experience with grinder pumps in Westport, Connecticut, following Hurricane Irene. There, sewage backed up into a home served by a grinder pump after power was restored following a lengthy outage. According to Hovstadius, numerous grinder pumps started up and simultaneously exerted substantial pressure on the wastewater system piping and other components, causing failure of the residence's grinder pump connection with the lateral pipe and allowing sewage accumulated in the force main to back up into the home. In rebuttal, Rene Mathews credibly testified that the normal operating pressure range for the E/One grinder pump is zero to 80 psi. Beyond 80 psi, the pump's performance falls into a non-typical operating range and the pump begins to heat up, causing thermal switches in the pump to shut the motor down at 100 to 120 psi. Thus, while it is remotely possible that the E/One grinder pumps could generate pressures in the range of 180 to 200 psi before failing, as a practical matter, operation of the pumps' thermal switches render this scenario highly unlikely. The system piping is certified for a working pressure of 160 psi, which exceeds the maximum 100 to 120 psi that may occur before pump shutdown; moreover, the piping must meet the American Water Works Association ("AWWA") standards C-901 and C-906, which means that the piping has a much higher pressure capacity——as high as 240 to 400 psi——specifically to withstand certain surge conditions. Additionally, even if many grinder pumps were simultaneously running when power is restored following an outage, the pumps would not exert a sudden maximum pressure surge on the system piping. This is because as each pump restarts and begins to run, the pressure in the pump gradually builds; if a pump reaches the 100 to 120 psi range——which, as previously noted, is outside the normal operating range——the thermal switch causes it to shut down. Also, as a practical matter, after a massive outage, power typically is restored to one neighborhood or area at a time rather than simultaneously to the entire power grid. Thus, any scenario involving all pumps simultaneously running at maximum pressure is highly unlikely. For these reasons, it is highly unlikely, under any reasonable circumstances, that pressure generated by the grinder pumps would cause the system piping to burst. Petitioners further assert that since the HDPE piping comprising the collection systems is only being tested to 150 psi, rather than to failure pressure of between 250 and 500 psi, it is not being adequately tested to ensure it can withstand higher pressure levels that may occur under extreme operating circumstances. Rene Mathews explained, and Al McLaurin confirmed, that pressure testing of the pipes, which takes place after construction is complete and before the systems are certified as operable by DEP, is performed to detect leaks that may have been created during the construction process——not to determine the failure pressure of the piping. The piping being used in the system is certified for a working pressure of 160 psi and meets the AWWA pressure capacity standards of 240 to 400 psi. Testing system pipes to failure pressure is neither necessary nor required under DEP rules or the applicable technical manuals, and is not desirable because it would damage or destroy system piping, unnecessarily adding to system cost. Dr. Hovstadius is a recognized expert in pumping systems, with worldwide experience in wastewater pump technology. He is knowledgeable about E/One grinder pumps and has experience with their use in one wastewater system in the northeastern U.S., where one grinder pump failed and flooded a home with sewage. However, he is not familiar with the specific details of the CRWS, having spent only a small amount of time before his deposition familiarizing himself with some of the documentation and information regarding the projects. He did not perform an independent engineering analysis of, or calculations regarding, the wastewater collection systems, and he was not aware of certain design features of the CRWS, such as check valves and the High Tide Technologies around-the-clock monitoring system,35/ which reduce the risk of a scenario as described in his testimony. By contrast, Ms. Mathews has extensive wastewater engineering experience, and the firm with which she is employed is the design engineer for the inner islands systems. She has previous experience designing systems with grinder pumps and possesses extensive knowledge and in-depth understanding of the CRWS and details specific to the wastewater collection systems. Mr. McLaurin has years of experience in wastewater systems engineering and extensive experience in regulatory review of wastewater water systems, so is very knowledgeable about DEP rule requirements and their application to wastewater systems. For these reasons, the testimony of Mathews and McLaurin is deemed more persuasive than that of Maynard and Hovstadius on the issue of system pressure capacity. Petitioners failed to demonstrate that the E/One grinder pumps will exert pressures exceeding the systems' piping pressure capacity, causing system piping bursting or failure. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the E/One grinder pumps used in the systems design will function as anticipated, will not exert pressures that exceed the systems' piping capacity, and will not cause system piping to burst or fail. Wastewater Service During Power Outage Petitioners allege that because E/One grinder pumps require electric power to operate, they are inappropriate for use in the Florida Keys, due to the likelihood of power outages during significant weather events such as hurricanes. Petitioners allege that during power outages, sewer service to homes served by grinder pumps will be interrupted, in violation of DEP rules and technical manuals, including the Ten States Standards and the Design and Specification Guidelines for Low Pressure Sewer Systems. They further allege that continued use of residential wastewater systems during power outages will result in the release of sewage from grinder pumps wet wells into the environment and onto properties served by the pumps. The CRWS design and operating protocol contain measures specifically directed to these issues. Specifically, the neighborhood/area lift station design includes a quick connect riser pipe that will be used to periodically flush the systems and can be used in emergencies to pump water out of the lift stations into the force mains and to the treatment plant, thus preventing lift station overflow. Additionally, each residential grinder pump includes an outlet connection for a mobile generator. During a power outage, FKAA can pump out residential grinder pump wet wells using mobile generators, pump trucks, or vacuum trucks. As a practical matter, residential grinder pump wet wells can contain wastewater volumes of two days' normal use without pump out and, with conservative use, can go for longer periods without being pumped out before overflowing. If pump out becomes necessary, the pump design and FKAA's operating protocol provides for such service.36/ FKAA has over 150 trucks it can deploy to pump out residential pump wet wells and lift stations, and will purchase an adequate number (estimated at 30 to 40) of 10,000 kilowatt generators for emergency use. FKAA has determined that it will need thirty utility personnel crews working in two shifts to maintain the CRWS system, and has undertaken the planning and budgeting necessary to ensure adequate personnel availability during emergencies. Additionally, FKAA anticipates having volunteer assistance in such situations. In the event FKAA requires further assistance in addressing widespread pump out issues during emergencies, Layne Heavy Civil and Gianetti Contracting37/ are obligated by contract to provide generators to FKAA for use to pump out residential wet wells and lift stations. FKAA also is a member of FlaWARN, Florida's network for wastewater emergency response, through which wastewater utilities provide mutual assistance during emergencies. Through this membership, FKAA is ensured that it will receive assistance from other utilities as needed to address pump out and other wastewater related issues during emergencies. The wastewater collection systems also incorporate the Grinder Pump Guardian monitoring system by High Tide Technologies for each residential grinder pump and each neighborhood/area lift station. Under this monitoring system, each pump is continuously (24 hours a day, 7 days a week) wirelessly monitored. If a pump malfunctions, such as when wastewater inflow exceeds wet well capacity while the pump is running, alarm data is transmitted by satellite to a computer central server, which automatically notifies utility personnel of the specific type of malfunction by high water alarm, communication alarm indicating power failure, or alarm indicating excessive runtime or starts and stops. Notifications will include the street address location of the pump for which the alarm was sent, as well as the type of event triggering the alarm. This monitoring system will enable pump malfunctions to be immediately detected and rapidly addressed by maintenance personnel, significantly decreasing the likelihood of wastewater spill or release into homes or the environment. FKAA has undertaken extensive planning and activity to establish specific procedures and protocol for addressing collections systems operation, even though it is not required under DEP rules to provide this information until it submits a request to DEP for certification to place the CRWS into operation. By that time, FKAA will have fully prepared its operations and maintenance procedures and protocol addressing all aspects of CRWS operation, including operation during emergency circumstances. This information is required by DEP rule to be kept in a manual that is available for use by operation and maintenance personnel and for inspection by DEP personnel. See Fla. Admin. Code R. 62- 604.500. Petitioners did not demonstrate that sewer service will be interrupted in violation of DEP rules. FKAA demonstrated, by a preponderance of the competent substantial evidence, that uninterrupted sewer service will be provided, including during extended power outages and other emergency circumstances, as required by DEP rules.38/ Shutoff Valves and Backflow Prevention Devices Petitioners allege that the systems design does not include backflow prevention devices, so that if lines become plugged, sewage will back up into residences and may, under certain circumstances, cause residential wastewater lines to burst. They presented Donald Maynard's testimony in support of this position. Maynard's testimony was contradicted by Mr. McLaurin's persuasive testimony and other credible evidence showing that the system design does contain backflow and shutoff valves to prevent wastewater from backing up from the force mains into the residential wet wells and into the residences served by the grinder pumps. FKAA demonstrated, by a preponderance of the competent substantial evidence that, in compliance with DEP rules and applicable technical manual requirements and standards, the systems design incorporates safety valves to prevent the backflow of wastewater into residences and spillage and release into the environment. Petitioners did not demonstrate that the systems, as designed, do not contain backflow and shutoff valves to prevent backflow of wastewater into residences, in violation of DEP rules and applicable technical manuals. Shaft Seal Leakage Petitioners allege that the grinder pumps' design violates DEP rules because the pumps do not contain shaft seal leakage device detectors. Petitioners' only evidence presented to substantiate this allegation is Hovstadius' testimony that he heard of an incident in which flushing dental floss into a sewage system resulted in the floss wrapping around the pump shaft, opening the seal, and allowing the pump motor to be flooded. However, Petitioners did not present any competent substantial evidence showing that not including shaft seal leakage devices on grinder pumps violates any applicable permitting requirements and standards. The competent, credible evidence establishes that shaft seal leakage devices are not required for the grinder pumps proposed to be used in the proposed collection systems, for two reasons: first, shaft seal leakage devices are not required for alternative wastewater collection systems; and second, the E/One grinder pumps that will be used in the systems are smaller than the five and ten horsepower pumps for which shaft seal leakage devices typically are required. Rather than including shaft seal leak detection devices, the systems instead incorporate the Grinder Pump Guardian monitoring system by High Tide Technologies for each residential grinder pump and each neighborhood/area lift station. As previously discussed, this monitoring system immediately notifies utility personnel of pump malfunction issues so that they can be rapidly addressed. Petitioners did not demonstrate that the lack of shaft seal detectors on the grinder pumps being used in the systems violates applicable DEP rules or requirements in the technical manuals applicable to alternative wastewater collection systems. Other System Design and Function Issues Petitioners allege other collection systems design flaws that they assert will cause system components to malfunction, resulting in environmental harm and property damage in violation of DEP rules. Dr. Hovstadius strongly criticized the use of E/One grinder pumps in wastewater collection systems to be located in the Florida Keys, due to the potential for flooding during storm surges. He contended that the pumps are not submersible for extended periods, so will leak and malfunction if submerged for long periods. Hovstadius opined that under such conditions, the pumps may short out and cease to function, causing sewage to back up onto the properties served by the pumps. In rebuttal, FKAA's witness Rudy Fernandez credibly testified that the E/One grinder pumps are submersible and will function properly while fully and continuously submerged. Mr. Fernandez is a licensed professional engineer in thirteen states, including Florida. He has approximately 40 years of public and private sector engineering experience in wastewater systems design, operation, and compliance. He is a member of the Water Environment Federation, having served on its technical practice committee at the time the committee published a revised version of the Manual of Practice No. FD-12, Alternative Sewer Systems (1986),39/ which applies to alternative collection/ transmissions systems pursuant to rule 62-604.400(4). As such, he is very knowledgeable about alternative wastewater collection systems, including the use of E/One grinder pumps in such systems. Although Dr. Hovstadius is an expert in pumping systems, his experience with E/One grinder pumps is relatively limited, particularly when compared to that of Mr. Fernandez. Further, Fernandez is very knowledgeable about the specific components of the CRWS, including the design and operation of the grinder pumps. By contrast, Hovstadius had only general knowledge about the CRWS, and was unaware of key details, such as the inclusion of safety check valves, to prevent sewage backflow into homes served by grinder pumps. Accordingly, Fernandez's testimony is deemed more persuasive than that of Hovstadius regarding E/One grinder pump submersibility. Petitioners have not shown that the E/One grinder pumps will malfunction as a result of being continuously submerged, thus releasing sewage into the environment and cause property damage. Petitioners also assert, through Hovstadius' testimony, that E/One grinder pumps are prone to malfunction from flushing common items such as baby wipes, dental floss, and tampons, or rinsing cooking grease down the kitchen drain. Rene Mathews credibly testified that such items are a problem for all types of wastewater system, not just low pressure systems or systems using E/One grinder pumps. To reduce the likelihood that such items are deposited into the wastewater collection system, FKAA will distribute flyers and host public education events to educate residents and the transient population regarding proper use of the wastewater collection systems. The O & M manual, which has been provided in draft form, includes a list of items that should not be introduced into any sewer system, and this list will be distributed to all properties served by the collection systems. Petitioners have not shown that E/One grinder pumps are any more susceptible to malfunction than other wastewater system components as a result of items being flushed or washed down drains. Additionally, FKAA has established that its systems operation protocol will include measures to reduce the likelihood of malfunction due to items being deposited in the systems. Petitioners also allege that E/One grinder pumps are inappropriate for use in the neighborhood/area lift stations. In support, they presented the testimony of Donald Maynard, who testified that having multiple grinder pumps in lift stations may be problematic during low occupancy periods in the Keys. The grinder pumps in each lift station function as a series, with a lead pump being activated at a particular wastewater level and each successive grinder pump thereafter activated by increasing wastewater levels in the lift station. Maynard contended that during low occupancy periods, the wastewater levels in the lift stations will be too low to activate the grinder pumps in the stations, causing sediments to accumulate and pipes to plug. Rene Mathews countered Maynard's position with credible testimony that grinder pumps are commonly used in designing lift stations in low pressure wastewater collection systems. She explained that the neighborhood/area lift stations have been designed so that the grinder pumps will be continuously submerged as required to meet the Class I, Division 2 NEC and NFPA Standards. Shop drawings submitted during construction will depict neighborhood/area lift station water levels sufficient to fully submerge the grinder pumps, in compliance with the lift stations' design. As additional support for their position that grinder pumps are inappropriate for use in the neighborhood/area lift stations, Petitioners cite a provision in the O & M manual stating that "grinder pumps are not designed to be small lift stations." This statement must be considered in context. The statement appears in the E/One grinder pump "Product Introduction" chapter in the Service Manual for the pumps, which is part of the O & M manual. The full discussion in which this statement appears reads: "Environment One Grinder Pumps are designed to grind and pump domestic sewage. The grinder pumps are not designed to be small lift stations. They are not capable of handling waters with high concentrations of mud, sand, silt, chemicals, abrasives, or machine waste." In context, it is apparent that this statement is directed at informing the user regarding the types of materials that should not be disposed of in a system using E/One grinder pumps; it does not state that E/One grinder pumps are inappropriate for use in lift stations. As previously discussed, FKAA's O & M manual contemplates public education and outreach efforts to help assure that materials and items that would damage the pumps, as well as other wastewater system components, are not discarded in the systems. To verify that the wastewater collections systems have been correctly designed for their intended use and will not cause environmental or property damage, FKAA retained Stephen Wallace to perform an independent analysis and evaluation of every aspect of the proposed systems. Mr. Wallace is a wastewater systems engineer having over 30 years of experience in hydraulic systems design. Over his career, Wallace has designed and constructed over 140 low pressure systems, including more than 100 systems using E/One grinder pumps. Although Wallace has not previously been involved with projects in the Florida Keys, while visiting the Keys, he personally observed physical and environmental conditions, such as high ground water levels, sandy soils, flat topography with threat of flooding, sensitive flora and fauna, and seasonal population fluctuations, that are comparable to those attendant to projects on which he has worked in Australia. Under Wallace's direction, a professional team consisting of engineering specialists in pumps and pump stations, low pressure wastewater systems design, and hydraulic modeling, and a mathematician independently analyzed and evaluated the CRWS low pressure systems design to determine whether they would provide long-term satisfactory performance. The team selected two representative project areas in Upper Sugarloaf Key and Ramrod Key and independently performed a hydraulic engineering analysis using a model specifically developed for modeling the performance of low pressure systems, then compared their results to the designs by FKAA's design engineers, Mathews Consulting and Chen Moore. Their results validated the designs prepared by Mathews and Chen Moore. Based on his team's analysis and evaluation, Wallace credibly and persuasively opined that the CRWS, as designed, will be successfully implemented and will not cause environmental pollution. FKAA witness Rudy Fernandez also testified, credibly, that the wastewater collection systems have been correctly designed and adequately cover all concerns that Petitioners have raised. Fernandez verified that the systems design includes safety valves to prevent backflow from the system into homes served by the systems. He concurred with Mathews and McLaurin that testing the transmission piping to 150 psi is sufficient to determine whether leakage points were created during construction, and confirmed that it is inappropriate to pressure test the pipes to failure because, as a practical matter, the system will not experience pressures high enough to cause pipe bursting or other failure. He agreed with Mathews' and Chen Moore's system design 4.0 peaking factor, and disagreed with Petitioners' witnesses' testimony that the pumps will exert pressure sufficient to cause system pipes to burst upon power restoration following an outage. Fernandez opined that there is a substantial likelihood that the systems, as designed, will function successfully, and that it is unforeseeable that the collections systems, as designed, will cause pollution. Petitioners failed to prove that including E/One grinder pumps in the wastewater collection systems is inappropriate and will result in systems' malfunction and consequent spillage and release of wastewater into the environment and onto the properties served by the systems. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the E/One grinder pumps will function normally when fully submerged and are appropriate for use in lift stations. Accordingly, including them in the systems' design will not cause the systems to malfunction and release wastewater into the environment and onto the properties served by the pumps, in violation of DEP rules. Petitioners' Standing Respondents challenge the standing of DTP40/ and the individual petitioners in these proceedings. DTP is a not-for-profit corporation incorporated under the laws of the state of Florida. Its mailing address is Post Office Box 1956, Big Pine Key, Florida 33043. DTP's corporate purpose is to oppose the use of grinder pump systems proposed by FKAA and permitted by DEP as part of the implementation of the CRWS. In addition to challenging the Permits at Issue in these proceedings, DTP actively participated in hearings before the Monroe County Board of County Commissioners ("BOCC") in an effort to convince the BOCC to reduce or eliminate the use of grinder pumps as part of the CRWS. DTP has approximately 265 members, a substantial number of whom own and/or reside on property that may be serviced by a grinder pump as proposed by the Permits at Issue. The evidence also establishes that a substantial number of DTP's members own or reside on property proximate to properties that may be served by grinder pumps. DTP alleges that, for a variety of reasons, using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps. This, in turn, would harm groundwater, the nearshore environment, and DTP's members' properties. A substantial number of DTP's members may be requested to grant an easement to FKAA for the installation and maintenance of the grinder pumps that will serve their property. These members assert they will be injured by losing their ability to control who has access to their property. They also allege they will be injured due to the potential for collection systems malfunction alarms to interfere with their enjoyment of their property. As discussed above, grinder pumps require electricity to operate and therefore cannot operate during power outages unless alternative sources of electric power, such as generators, are used. Therefore, during extended periods of electrical outages, DTP members whose property is served by the grinder pumps may be asked to conserve water usage until electric power is restored. Continued use of residential systems served by grinder pumps during extended power outages, absent pump out according to operating protocol, could result in discharge of raw sewage from the wet wells. If not promptly and adequately cleaned up, this may create a human and environmental health risk and adversely affect nearshore waters. A substantial number of DTP's members use and enjoy the nearshore waters of the lower Florida Keys for various water-based recreational activities including fishing, kayaking, boating, canoeing, bird watching, swimming, and lobstering. Petitioner Theresa Raven is a resident and owner of property on Big Pine Key. Her address is 29462 Geraldine Street, Big Pine Key, Florida 33043. Her home is served by the CRWS. If Permit 18 is issued, Raven's property will be serviced by an E/One grinder pump. Accordingly, she will be asked to grant an easement over her property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages she may be asked to conserve water usage until electric power is restored. Raven uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. She asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and her property. Petitioner Daniel Fitch is a member of DTP and an individual petitioner in DOAH Case No. 14-2415, challenging the issuance of Permit 18. Fitch is a resident and owner of property on Big Pine Key. His address is 29462 Geraldine Street, Big Pine Key, Florida 33043. His home is served by the CRWS. If Permit 18 is issued, Fitch's property will be serviced by an E/One grinder pump. Accordingly, he will be asked to grant an easement over his property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages he may be asked to conserve water usage until electric power is restored. Fitch uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. He asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and his property. Petitioner Jim Skura is a member of DTP and an individual petitioner in Case No. 14-2416, challenging issuance of Permit 19. Skura is a resident and property owner on Sugarloaf Key. His address is 19860 Caloosa Street, Sugarloaf Key, Florida 33042. His home is served by the CRWS. If Permit 19 is issued, Skura's property will be serviced by an E-One grinder pump. Accordingly, he will be asked to grant an easement over his property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages he may be asked to conserve water usage until electric power is restored. Skura uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. He asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and his property. Petitioner Margaret Schwing is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. She is a resident and property owner on Big Pine Key South. Her address is 29756 Springtime Road, Big Pine Key, Florida 33043. Her home is served by the CRWS. If Permit 27 is issued, Schwing's property will be serviced by an E/One grinder pump. Accordingly, she will be asked to grant an easement over her property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages she may be asked to conserve water usage until electric power is restored. Schwing uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. She asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and her property. Petitioner Gail Kulikowsky is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. She is a resident and property owner on Big Pine Key. Her address is 30788 Pinewood Lane, Big Pine Key, Florida 33043. Her home is served by the CRWS. If Permit 27 is issued, Kulikowsky's property will be serviced by an E/One grinder pump. Accordingly, she will be asked to grant an easement over her property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages she may be asked to conserve water usage until electric power is restored. Kulikowsky uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. She asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and her property. Petitioner Deborah Curlee41/ is a member of DTP and an individual petitioner in Case No. 14-2420, challenging the issuance of Permit 25. She is a resident and owner of property on Cudjoe Key. Her address is 1052 Spanish Main Drive, Cudjoe Key, Florida 33042. Her property will not be served by an E/One grinder pump; however, she lives less than a quarter-mile from a proposed lift station and less than a mile from two other proposed lift stations. She is concerned that if there is a pump failure at these lift stations resulting in a sewage spill, the area in which she lives, including her property, would be negatively impacted and the sewage would flow into the groundwater and nearshore waters. She uses and enjoys the nearshore waters of Big Pine Key for water-based and other recreational activities, including fishing, boating, kayaking, snorkeling, picnicking, and engaging in nature observation and enjoyment activities as a member of entities whose purpose is to protect the environment. Entitlement to Permits at Issue As discussed above, FKAA met its burden under section 120.569(2)(p) to present a prima facie case demonstrating entitlement to the Permits at Issue by entering into evidence the applications and supporting materials for the wastewater collection systems and the notices of intent for each of the Permits at Issue. In addition, FKAA presented persuasive, competent, and substantial evidence far beyond that necessary to meet its burden under section 120.569(2)(p) to demonstrate entitlement to the Permits at Issue. As discussed above, Petitioners failed to prove, by a preponderance of the competent substantial evidence, that the wastewater collection systems at issue, as designed, do not comply with DEP rules and applicable technical standards and requirements, resulting in environmental harm and property damage. On rebuttal, FKAA and DEP thoroughly addressed and rebutted each of the grounds that Petitioners allege justify denial of the Permits at Issue. Accordingly, Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the issuance of Permit No. 295404-018-DWC/CM (Permit 18), at issue in Case No. 14-2415; Approving the issuance of Permit No. 295404-019-DWC/CM (Permit 19), at issue in Case No. 14-2416; Approving the issuance of Permit No. 295404-027-DWC/CM (Permit 27), at issue in Case No. 14-2417; and Approving the issuance of Permit No. 295404-025-DWC/CM (Permit 25), at issue in Case No. 14-2420. DONE AND ENTERED this 3rd day of February, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2015.
The Issue The issue presented for determination in this proceeding is whether the wasteload allocations set forth in respondent's interoffice memorandum dated September 8, 1977, constitute a rule subject to the procedural requirements of the Administrative Procedure Act, Chapter 120, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner, a municipal corporation, applied to the respondent for renewal of its permit to operate a sewage treatment plant. The respondent gave notice of its intent to deny said application on the ground that petitioner had not met the wasteload allocations established for the upper part of the Peace River Basin. A petition for a hearing on this denial was filed by petitioner pursuant to the provisions of Florida Statutes, 120.57(1), and a hearing was originally scheduled for May 11, 1978. At the commencement of this hearing, it became apparent that petitioner was also alleging that the wasteload allocations set forth in an interoffice memorandum dated September 8, 1977, constituted a rule within the meaning of Chapter 120, Florida Statutes, and therefore must be adopted pursuant to the provisions of said chapter. The respondent not being prepared to meet this allegation and the petitioner not having filed a petition pursuant to the provisions of Section 120.56, the scheduled hearing was continued and petitioner was granted leave to file a petition pursuant to Section 120.56 challenging the validity of the wasteload allocations as an invalid rule. Petitioner properly filed its petition for an administrative determination of the validity of a rule and the two petitions were consolidated for hearing purposes. The "rule" being challenged herein contains revised wasteload allocations for four municipalities in Polk and Hardee Counties. These four include Bartow, Ft. Meade, Bowling Green and Wauchula, each of which discharges effluent into the Upper Peace River Basin. As noted above, these allocations are set forth in an interoffice memorandum dated September 8, 1977, and were not adopted pursuant to the rulemaking provisions of Chapter 120, Florida Statutes. Wasteload allocations are derived from mathematical calculations fed into a scientific model. They are based upon information pertaining to the treatment plant, the type of effluent, the physical, chemical and biological characteristics of the receiving waters and the number and nature of other discharges to the receiving waters. In developing said allocations, the respondent relies upon information received from the applicant, as well as existing water quality data from the Environmental Protection Agency, United States Geological data, local programs and university studies. The purpose of developing wasteload allocations is to determine the chemical effect of the discharge upon the receiving body of water and to determine whether a certain volume of effluent treated to a specified degree will depress water quality below the standard established for a particular class of water. Wasteload allocations are calculated by the respondent for each individual discharger to determine whether a reduction in water quality will occur. When an application for a discharge permit is made to respondent, allocations for several dischargers in close proximity affecting the same portion of a body of water may be calculated at the same time, as was done in the September 8th memorandum. However, the other individual allocations become effective and applicable only when those dischargers seek a permit from the respondent. At that time, the allocation is revisited and recalculated based upon the most recent, available information and data. The wasteload allocations have applicability only when a facility seeks a permit to discharge effluents into surfaced waters. In the State of Florida, there are approximately 1,300 domestic and municipal sewage treatment plants and 230 industrial dischargers. A uniform wasteload allocation for 1,530 dischargers would be impossible and meaningless because each has its own unique characteristics based upon the type and method of discharge and the nature of the receiving body of water. Accordingly, the wasteload allocations are established by respondent on a case by case basis in the permitting process. Approximately 1.6 million dollars in capital expenditures will be necessitated in order for petitioner to comply with the wasteload allocations established by the respondent. There would also be increases in operating and management costs for new capital improvements. Alternative methods of sewage treatment may be undertaken by the petitioner.
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 97-02-0234 may be recovered from Petitioner pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Orchard View Development, Limited (Orchard View) is an Ontario, Canada corporation. Its president is William T. Lamsom. Orchard View is now, and has been since approximately two to six months prior to the incident which is the subject of this proceeding, the owner of a triangular, three-quarter acre parcel of undeveloped land (Orchard View's Parcel or the Parcel) located on the fringe of a Boca Raton, Florida residential neighborhood. There are children in the neighborhood who pass by the Parcel on their way to and from school. City streets border Orchard View's Parcel on all sides. Across one of these streets is a creek. Orchard View owns an additional 78 acres of undeveloped land (Orchard View's Acreage or the Acreage) to the north of its Parcel. Only a street separates the Acreage from the Parcel. Orchard View first acquired the Acreage in approximately 1975 and sold it about 14 or 15 years later. During this 14 or 15-year period, the Acreage was used by others, without Orchard View's approval or authorization, as a dumping ground. Numerous items, including boats, automobiles, tires, baby carriages, mattresses and landscaping material, were left abandoned on the property. Steps taken by Orchard View (which was well aware of the problem) to deter such dumping, including posting "no trespassing" signs on the property and erecting a 10-foot dirt barrier on one side of the property, were ineffective. Orchard View also complained to the police about the problem, but the making of these complaints did not result in an amelioration of the situation. Orchard View reacquired the Acreage at approximately the same time it acquired the Parcel. Since Orchard View's reacquisition of the Acreage, unauthorized persons have driven their all-terrain vehicles on the property without the approval or authorization of Orchard View, notwithstanding the "no trespassing" signs on the property. Although aware of the dumping problems in the area, Orchard View has not, at any time after its acquisition of the Parcel, posted "no trespassing" signs on the Parcel or erected a fence or other barrier around the Parcel, nor has it taken any other measure designed to discourage or prevent dumping on the Parcel. On June 9, 1997, at 11:10 a.m., the Department was notified by Lieutenant John Johnson of the Boca Raton Fire Department that four drums, which were labelled “poison and toxic,” had been discovered on the Parcel. The drums did not belong to Orchard View. They had been dumped on the Parcel by some person or persons not associated with Orchard View without Orchard View's knowledge, approval or authorization. Catherine Porthouse, an Environmental Specialist II with the Department, promptly responded to the scene (where she met Lieutenant Johnson) and served as the Department's on-scene coordinator. Because the drums were labelled “poison and toxic” and their contents were unknown, Lieutenant Johnson would not allow anyone, including Porthouse, to approach the drums without "Level B" protective clothing and equipment. Porthouse therefore initially viewed the drums from a distance using binoculars. She noted that three of the drums were leaking and that there was stained soil in the area of the drums. She also saw other solid waste materials nearby. Porthouse learned that Orchard View was the owner of the property on which the drums were located. At 12:49 p.m. on June 9, 1997, Porthouse telephoned Lamson and advised him that the drums were on the Parcel and that they needed to be removed by an "emergency response contractor." When informed about the presence of the drums on the Parcel, Lamson was not surprised. He realized (as he testified at hearing) that the area was "a good dumping ground." Lamson told Porthouse that he would ask his son, a general contractor who lived and worked near the Parcel, to remove the drums. Porthouse, however, explained to Lamson that the removal of the drums needed to be done by someone qualified, under state and federal law, to handle and transport hazardous substances. Lamson thereupon asked Porthouse to provide him with a list of "emergency response contractors" qualified to remove the drums. Porthouse gave Lamson her office and cellular phone numbers and asked him to call her back within no more than three hours to update her on his efforts to hire an "emergency response contractor" to remove the drums. Following Porthouse's telephone conversation with Lamson, the Department faxed to Lamson the list of qualified contractors Lamson had requested during the telephone conversation. After speaking with Porthouse, Lamson attempted to telephone his son. Lamson's son was not in, so Lamson left a message on his son's answering machine telling his son about his telephone conversation with Porthouse concerning the abandoned drums on the Parcel. In his message, Lamson asked that his son look into the matter. Neither Lamson, nor his son, made any arrangements for a qualified "emergency response contractor" to remove the drums from the Parcel; nor did either of them contact Porthouse and advise her that such arrangements had been made or would soon be made. Accordingly, at approximately 4:00 p.m. on June 9, 1997, after having waited over three hours for Lamson to provide her with such information, Porthouse hired Magnum Environmental Services (Magnum), a qualified "emergency response contractor" with whom the Department had a contract, to properly dispose of the four abandoned drums (and their contents), as well as the stained soil, on the Parcel. Magnum personnel (with "Level B" protective clothing and equipment) responded to the scene shortly thereafter. By approximately 6:30 or 7:00 p.m. that day (June 9, 1997), Magnum personnel had overpacked, removed from the Parcel and taken to an off-site hazardous waste storage facility the four abandoned drums (and their contents), as well as a fifth drum which contained the stained soil from the site (which Magnum had excavated). Before it had overpacked the drums and removed them from the Parcel, Magnum had examined and sampled the contents of each drum. The samples that Magnum had collected from the drums were sent to the laboratory for analysis. The analysis revealed the following: drum number 11 contained oil, barium, lead and toluene and had a flashpoint of less than 100 degrees Fahrenheit; drum number 2 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 3 contained oil mixed with water, as well as barium and lead, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 4 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of over 200 degrees Fahrenheit; drum number 5 contained the soil that had been contaminated by spillage from drum numbers 2, 3 and 4 and had of flashpoint of between 101 and 139 degrees Fahrenheit. Magnum properly disposed of the drums based upon the results of its analysis. The Department paid Magnum $6,135.00 from the Water Quality Assurance Trust Fund for the services Magnum performed. In requesting Magnum to perform these services and in paying Magnum $6,135.00 for having done so, the Department acted reasonably and prudently. The amount it paid Magnum was not excessive.2 The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $390.13 in connection with its response to the report it had received concerning the abandonment of the four drums on the Parcel. The total amount the Department paid from the Water Quality Assurance Trust Fund to have these abandoned drums properly removed from the Parcel and disposed of was $6,525.13. The Department is requesting that Orchard View reimburse the Department for these costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Orchard View, pursuant to Chapters 376 and 403, Florida Statutes, the $6,525.13 in costs it reasonably incurred in connection with its response to Incident Number 97-02-0234. DONE AND ENTERED this 15th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1998.
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is entitled to the renewal of its domestic wastewater facility permit that was denied by Petitioner Department of Environmental Protection (Department).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes (2005),1 and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."2 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting water quality in the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the area of the St. Lucie River that Warner Creeks flows into is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2 at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. Laniger's WWTP was not determined to be a threat based on its wastewater treatment performance. There was no evidence presented that Laniger's WWTP had ever had intermittent treatment process failure, seepage to the lagoon system from effluent containment areas, or overflow during storm events. Those were the concerns related to package plants that were described in the SWIM Plan and the Department's 1991 report. Laniger's WWTP was not determined to be a threat based on evidence that it was causing or contributing to excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. No evidence was presented that there are excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. The Department's 1991 report concluded that the solution for package plants threats was to eliminate the package plants and connect their wastewater flow to centralized sewage collection and treatment facilities. To date, over 90 of the 155 package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." The administrative order required Laniger to connect its WWTP to a centralized wastewater collection and treatment [facility] "within 150 days of its availability . . . or provide reasonable assurance in accordance with Chapter 620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System." As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, Laniger's attorney responded, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. Laniger's attorney also stated, "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] order." On September 29, 2003, the Department issued a warning letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The Department took no further formal action until it issued the NOV in August 2005. Laniger's challenge of the NOV was consolidated with this permit case. The Permit Renewal Application In an "enforcement meeting" between Laniger and the Department prior to the expiration of 1999 permit, the Department told Laniger that it would not renew Laniger's WWTP permit. Later, when Laniger filed its permit renewal application, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger submitted its permit renewal application to the Department on February 15, 2005. The Department considered Laniger's permit application to be complete, but proceeded to prepare the Notice of Denial without any technical review of the application. The Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." The record evidence showed that the "reasonable assurance" that would have been necessary to satisfy the Department was more than the reasonable assurance the Department usually requires for package plants, and more than the Department would have required if Laniger's WWTP was 100 feet from Warner Creek. Competent substantial evidence was presented that Laniger's WWTP is capable of being operated in accordance with the statutes and rules of Department generally applicable to package wastewater treatment plants. Laniger's 1999 permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Whether the Martin County Facility is Available As discussed below in the Conclusions of Law, it is concluded that the Department did not have authority to require Laniger to connect the WWTP to the Martin County force main or to require assurance beyond the reasonable assurance generally required for package treatment plants in order to obtain a permit. However, because considerable evidence and argument was directed to whether the force main was available, that issue will be addressed here. The Martin County force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad and railroad right-of-way. Laniger presented undisputed evidence that the cost to connect to the Martin County force main would be approximately $490,000 and that cost was prohibitively high, given the relatively small number of households served by the WWTP. The Laniger WWTP is subject to rate regulation by the Public Service Commission (PSC). Laniger presented evidence suggesting that connection to the Martin County force main would result in rates that would not be approved by the PSC. The evidence was speculative and not competent to support a finding regarding PSC action. The evidence does show, however, that PSC rate regulation was not a factor that the Department considered when it determined that the Martin County force main was available. There is no Department rule that defines when a centralized sewage collection and treatment facility is "available." The determination that the Martin County force main was available to Laniger was made informally by members of the Department's compliance staff in the Department's St. Lucie office. Mr. Thiel testified that he considered the force main to be available because it was "in close proximity" to Laniger's WWTP. However, Mr. Thiel admitted that there is a difference of opinion within DEP as to when a facility is available and reasonable persons could disagree about whether a facility was available. Mr. Thiel thought that the cost to connect is a factor to be considered in determining whether a facility is available, but another Department employee did not think cost should be considered. There was no evidence that the Department took into account Laniger's cost to connect in determining that the Martin County force main was available. The Department simply assumed that the Martin County force main was close enough to the Laniger WWTP site that the cost to Laniger would not be prohibitive. In addition, the Department was aware of other package plants that had connected to centralized sewage collection and treatment facilities that were the same distance or a greater from the package plant, and the Department did not hear from the owners of the package plants that the costs were prohibitive. Timothy Powell of the Department stated that force mains are usually made available by extending the force main so that it is "abutting the property as much as possible." He also stated that he assumed that Martin County would extend its force main under the railroad and to the boundary of the Laniger WWTP site after Laniger agreed to connect. However, there was no evidence to show that this is Martin County's intent, and the Department did not tell Laniger that Laniger did not have to connect to the force main unless Martin County brought the line to the boundary of the WWTP site. If the Department had authority to require Laniger to connect to the Martin County force main when it became available, and in the absence of any rule criteria to determine when a centralized sewage collection and treatment facility is available, the determination would have to be based on reasonableness. Reasonableness in this context must take into account the cost of the connection. Cost is the inherent reason that Laniger was not required to connect to the Martin County centralized sewage collection and treatment facility without regard to whether the facility was available. Laniger showed that the cost of connecting to the force main is unreasonably high due to the need to construct a line beneath the railroad. Therefore, Laniger proved by a preponderance of the evidence that the Martin County force main is not available.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Laniger Enterprises of America, Inc., a renewal of its wastewater treatment plant operating permit. The permit should contain the same conditions as were contained in the 1999 permit, with the exception of those conditions derived from Administrative Order No. AO 99-008- DW43SED. DONE AND ENTERED this 19th day of September, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2006.
The Issue The issue for determination in this case is whether Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority because the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Findings Of Fact The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the National Pollution Discharge Elimination (NPDES) permitting program in Florida. The Department promulgated the rules in Florida Administrative Code Title 62 that are applicable to the permitting of wastewater discharges. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. IP owns and operates a paper mill in Cantonment, Escambia County, Florida. IP is the applicant for the Department authorizations that are the subject of DOAH Case Nos. 08-3922 and 08-3923. Background When this rule challenge was filed, DOAH Cases Nos. 08-3922 and 08-3923 (the permit cases) involved challenges by these same Petitioners to four Department authorizations for IP: an NPDES permit, a Consent Order, an approved exemption for the experimental use of wetlands pursuant to Florida Administrative Code Rule 62-660.300, and a waiver related to the experimental use of wetlands. IP later withdrew its request for the experimental use of wetlands exemption and the related waiver. Petitioners were ordered to show cause why their claim regarding the invalidity of Florida Administrative Code Rule 62- 660.300 was not rendered moot by IP’s withdrawal of its request for the exemption. Subsequently, the challenge to the validity of Florida Administrative Code Rule 62-660.300 was dismissed as moot. At the commencement of the final hearing on June 22, 2009, FOPB and James Lane announced that they were withdrawing their rule challenges except with respect to Florida Administrative Code Rule 62-302.300(6), and that the only legal ground being asserted for the invalidity of the rule is that it is vague and vests unbridled authority in the Department. Petitioners’Standing Jacqueline Lane, James Lane and a substantial number of the members of FOPB swim, boat, and make other uses of Perdido Bay. Perdido Bay would be affected by IP's wastewater effluent. The challenged rule was applied by the Department to determine that IP's proposed industrial wastewater discharge was in the public interest. The Challenged Rule Florida Administrative Code Rule 62-302.300, is entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Subsection (6) of the rule states: Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. Most of the permits that are issued by the Department are issued to private entities whose primary purposes are personal uses or the production of private incomes and profits, rather than solely to provide facilities or benefits to the general public.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner L. C. Prevatt is the owner and operator of the Riverview Speed Wash, Inc., a coin operated laundry which has been in existence for over ten years. The facility has twelve top load washers, four double load washers, one triple load washer and seven gas dryers. It is open from 7:00 a.m. to 9:00 p.m., seven days a week. The facility is located in a shopping center in space which petitioner rents on a month-by-month basis. The facility utilizes a 0.0075 mgd waste treatment plant with effluent disposal to a county-owned drainage ditch which is connected and discharges to the Alafia River approximately 0.6 miles south of the facility. On or about May 29, 1981, petitioner submitted an application for a temporary operation permit for his Riverview laundry facility. Temporary operation permits are issued by the DER when a facility is not currently meeting State water quality standards and the applicant needs or desires a period of time to bring the facility up to the applicable standards. Here, the petitioner stated on his application that no upgrade of the waste treatment facility was planned. The application further stated that the facility would be connected to an area wide regional waste treatment system when that system became available. After numerous requests for further information from the applicant and various inspections of the facility, the DER issued its notice of intent to deny petitioner's application for a temporary operation permit. Reasons for the intended denial included failure to provide requested background water quality information, failure to provide a proposed water quality standards compliance schedule, failure to provide reasonable assurance that a municipal sewer would be available as an alternative means of disposal and improper and deficient operation and maintenance of the facility. Numerous inspections of the petitioner's facility by personnel from the DER and the Hillsborough County Environmental Protection Commission revealed that the facility was not functional in terms of operating correctly and that the design of the plant was inadequate to meet State water quality standards. Specifically, these inspections revealed that the chlorination equipment was not operational, that the trickling filter was not operational, that the removal rates for BOD and suspended solids were consistently and significantly less than the State standard of 90 percent, that the discharge and effluent were of a milky color and would not meet the State standards for turbidity and color, that the water quality of the drainage ditch was extremely low and that the water quality results were actually worse after going through the existing system. It was determined that the discharge was degrading the quality of the receiving waters and that, even if the petitioner's operational and maintenance problems were solved, the design of the facility is not adequate to assure future compliance with State standards. Petitioner admits that his facility does not currently meet State water quality standards. In mitigation, it is contended that many other laundries in the area also do not meet State standards, that it is not economically feasible to redesign the facility to attain compliance, that he has no land available upon which to discharge effluent and that he would be willing to install a sand filter and did have the permission of the manager (not the owner) of the property to discharge effluent into the parking lot drain ponds. No written evidence of this agreement was adduced and there was no demonstration that such runoff ponds would be able to hold and/or treat effluent from the petitioner's facility. There was also no evidence offered to demonstrate that a municipal or regional sewer system would be available in the near future to serve the laundry facility.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for a temporary operation permit for Riverview Speed Wash, Inc. be DENIED. Respectfully submitted and entered this 7th day of September, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1982. COPIES FURNISHED: L. C. Prevatt Post Office Box 998 Gibsonton, Florida 33534 William W. Deane, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues are whether the Consent Order entered into between the Department of Environmental Regulation (DER) and Kenneth Acre (Acre) is an appropriate settlement of the violations addressed therein and whether Acre is entitled to construction permit number IC35-190005 for an Industrial Waste Disposal Facility. The Bradys assert that the Consent Order is not a reasonable exercise of DER's enforcement discretion and that the permit should be denied.
Findings Of Fact Background Acre owns and operates an animal research facility in Eustis, Florida. Acre performs research trials on dogs using a USDA approved heartworm medication sold under the brand name of Heartguard, the chemical name of which is ivermectin. Acre is not in the business of testing or manufacturing new drugs. The Consent Order To handle the waste generated by the animals at the facility, Acre initially constructed a conventional septic tank system. Prior to construction, Acre contacted the Lake County health department to inquire about permitting and was told that he did not need a permit for his facility. With that information, he continued with the project. Subsequently, DER became aware of the facility and notified Acre that a DER industrial waste permit was required and that he should cease the discharge into the septic tank until such a permit was obtained. Acre complied with DER's instructions and plugged the septic tanks. Since the time the septic tanks were plugged, the waste has been collected by Roto Rooter on a periodic basis and disposed of offsite. Acre entered into a Consent Order with DER to resolve the alleged past violation for not obtaining a permit and paid of penalty of $600 as required by DER. The Consent Order is a reasonable and appropriate settlement of the violations alleged therein. The Disposal System Acre has applied for a permit to construct and operate an evapotranspiration disposal system to dispose of the waste from his facility on site. The proposed system is essentially a modified septic tank system using a lined drainfield to capture and hold the liquid waste, allowing it to transpire from the grass or otherwise evaporate into the atmosphere and preventing any discharge to groundwater. The waste will be discharged to a series of modified septic tanks which will provide treatment beyond that of a traditional septic tank system and will reduce the amount of total suspended solids. The first septic tank accepts the waste and provides initial treatment through natural settling of solids. The waste then passes through a filter device and travels by gravity flow to the second septic tank. From the second tank it flows through a second filter device and into a dosing tank. The dosing tank is basically a small holding basin with a pump that disperses the waste to the drainfield in incremental amounts. The dosing tank contains several float mechanisms which monitor the level of liquid in the tank. When the water level in the dosing tank reaches a certain level, one such float mechanism turns on the pump to transport the liquid to the drainfield. The waste is then pumped from the dosing tank through a closed pipe to one of two evapotranspiration cells where it is distributed through a number of perforated pipes. The Evapotranspiration Cells The perforated pipes are situated in a gravel bed approximately 24 inches in depth. On top of the gravel bed is a clay soil mix approximately 15 inches deep. The clay soil mix absorbs the liquid waste in the gravel bed by drawing it up through the process of capillarity. Once the liquid is in the upper clay soil layer, it is evaporated. Grass is planted on top of the soil mix as an additional method for dissipation of the waste. The liquid waste is absorbed by the roots of the grass and transpired through the grass leaves. The clay soil mix in the top layer of the system is relatively impervious. The impervious nature of the soil mix along with a three percent surface slope will prevent rain water from entering the evapotranspiration cells and impacting the effective operation of the system. The entire drainfield has a double liner: one PVC plastic liner and a 6" clay layer. These two liners will ensure that no discharge to groundwater will occur from the system. System Capacity It is estimated that the Acre facility will produce approximately 520 gallons per day (GPD) of waste to be handled by the system. The drainfield is designed to handle twice the volume that will be discharged by the Acre facility and is therefore more than adequate to assimilate the waste received into the system. The drainfield is composed of two independent cells so that loading of each cell will be rotated. Once one cell receives its maximum capacity, the loading of that cell will cease in order to allow that cell to assimilate the waste through evapotranspiration. In this manner, the first cell is permitted to "rest" while the second cell receives further loading from the dosing tank. Safety Features Although the proposed disposal system is innovative in design, it incorporates several safety features which will ensure that no overflow of waste will occur. First, a float mechanism in the dosing tank is designed to trigger an alarm in the event the water level in the dosing tank gets too high. If that occurs, the alarm provides a flashing light as well as a horn which will notify the operator of a problem. Once the float reaches this warning level, the system will automatically shut down, thus preventing further waste from entering the system. Second, each evapotranspiration cell is equipped with a similar device which will automatically close off the dosing tanks and prevent further discharge into the cells in the unlikely event the system were to become too saturated to accept further loading. Finally, the double lined drainfield provides an additional safety measure which will prevent any discharge to groundwater. The numerous permit conditions requiring periodic monitoring of water quantity and quality in the system itself as well as the groundwater in the vicinity of the system provide ample assurance that the system will not pose a threat to the state's water resources. Ivermectin Although the proposed system will not discharge to groundwater, DER required the applicant to determine the amount of ivermectin in the wastestream. Ivermectin binds tightly to soil and does not dissolve in water. A sample of the wastestream from the Acre facility was collected by Bionomics Laboratory, Inc., and analyzed by Analytical Development Corporation using the analytical procedure designed by Merck scientists. The results of this analysis show that the concentration of ivermectin in the Acre wastestream ranges from .6 to 6.1 parts per trillion (ppt). The publication submitted to the Department by Acre entitled, Chapter 11, "Environmental Aspects of Ivermectin Usage in Livestock: General Considerations" by Halley, Nessel and Lu, from William C. Campbell, Ivermectin and Abamectin, documents the results of studies designed to determine whether using ivermectin in animals would result in any harmful or undesirable effects on the environment through excretion in the feces. This publication indicates that: Ivermectin is relatively immobile in soil and will not readily translocate into groundwater. Ivermectin is rapidly decomposed by sunlight and therefore will not accumulate in soil when administered to livestock. Ivermectin has no effect on earthworms at a concentration in soil of 12 parts per million (ppm). (This concentration is approximately two million times higher than that of the Acre waste stream.) Aquatic organisms such as water fleas and fish are highly sensitive to ivermectin toxicity. However, ivermectin is not toxic to the most sensitive species, the Daphnia magna, at a concentration of 0.01 parts per billion (ppb). Ivermectin concentrations in cattle feedlot runoff was less than the no-effect level of 0.01 ppb for Daphnia magna and therefore should cause no adverse environmental effects in surface or subsurface waters. The highest concentration of ivermectin found in the Acre waste stream is 6.1 ppt (or .006 ppb), which is less than the 0.01 ppb non-toxic level for the most sensitive aquatic species. Based on the concentration of ivermectin found in the Acre waste stream and the fact that ivermectin binds tightly to soil, the discharge from the Acre facility would not cause any adverse environmental impact, even if it were discharged to groundwater. Bradys' case Bradys submitted no evidence to show that the Consent Order is not an appropriate settlement of the violations alleged therein. They submitted no evidence that the septic tanks were improperly plugged. Brady offered no expert testimony in support of their claim that the facility had caused an adverse impact to groundwater or that the proposed system would cause any threat to groundwater quality. Bradys apparent concern about standing surface water on their property during heavy rainfalls is not relevant to this proceeding. Their concern that the lining of the drainfield could leak is unsupported by competent evidence. Bradys learned immediately prior to hearing that DER had changed its position and intended to issue the permit. Their failure to present any relevant evidence that the Consent Order was insufficient or that the proposed facility would violate any applicable DER rules or criteria and their ill- prepared participation in the hearing was in part the result of DER's late change in position. Bradys' participation in this proceeding was not shown to be frivolous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order and therein: Ratify the terms of the Consent Order as reasonable. Grant Acre construction permit number IC35-190005 for an Industrial Waste Disposal Facility, subject to the special conditions set forth in DER Exhibit 1. RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1992. APPENDIX TO RECOMMENDED ORDER CASE NOS. 91-2608, 92-0958 AND 92-0959 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Bradys 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6 & 7(8) and 15(10). 2. Proposed findings of fact 1-5, 16, 27, 28, 31, 36-42, 44, 46-49, 51, 52, 54, 57-59, 61, and 62 are subordinate to the facts actually found in the Recommended Order. 3. Proposed findings of fact 8, 10-14, 17, 19-21, 26, 29, 30, 32, 33, 35, 43, 53, 55, and 56 are irrelevant. Proposed findings of fact 9, 18, 22-25, 45, and 50 are unnecessary. Proposed findings of fact 34 and 60 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents, Acre and DER Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-44(1-44). Proposed findings of fact 45 and 46 are unsupported by the competent and substantial evidence. COPIES FURNISHED: Carlyn H. Kowalsky, Attorney at Law Bogin, Munns & Munns 250 North Orange Avenue 11th Floor-P.O. Box 2807 Orlando, FL 32802 Douglas MacLaughlin, Attorney at Law Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Martha Hunter Formella Attorney at Law FOLEY & LARDNER Post Office Box 2193 Orlando, FL 32802-2193 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
