07-005063 Michael Christensen vs. Florida Power And Light Company And Department Of Environmental Protection Status: Closed Recommended Order on Monday, March 3, 2008.

Summary: Petitioners failed to prove standing to challenge the permit for deep well injection of industrial waste, but DEP should revise the permit to state the maximum pumping rate and procedure for handling and documenting the handling of hazardous waste.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY ENVIRONMENTAL )

COALITION, PETER TSOLKAS, )

ALEXANDRIA LARSON, and )

MICHAEL CHRISTENSEN, )

)

Petitioners, )

) Case Nos. 07-5047

vs. ) 07-5062

) 07-5063

FLORIDA POWER AND LIGHT COMPANY )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

________________________________ )

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in West

Palm Beach, Florida, on January 22-25, 2008.

APPEARANCES

For Petitioners Palm Beach County Environmental Coalition

and Peter Tsolkas:

Barry Silver, Esquire

1200 South Rogers Circle, Suite 8

Boca Raton, Florida 33487

For Petitioner Alexandria Larson:

Alexandria Larson, pro se

16933 West Harlena Drive

Loxahatchee, Florida 33470

For Petitioner Michael Christensen:

Michael Christensen, pro se

13759 159th Street North

Jupiter, Florida 33478

For Respondent Florida Power & Light Company:

Eric T. Olsen, Esquire

Gary V. Perko, Esquire

Paula L. Cobb, Esquire

Hopping Green & Sams, P.A.

123 South Calhoun Street

Tallahassee, Florida 32301

For Respondent Department of Environmental Protection:

Cynthia Christen, Esquire

Ronald W. Hoenstine, III, Esquire

Office of the General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Respondent Florida Power & Light

Company is entitled to Permit No. 247895-007-UC for the

conversion of an exploratory well to an injection well, the

construction of a second injection well, and the operational

testing of both wells, which are intended to inject industrial

wastewater from a power plant into the Boulder Zone of the Upper

Floridan Aquifer.

PRELIMINARY STATEMENT

On April 25, 2007, Respondent Florida Power & Light Company

(Applicant) filed an application with Respondent Department of

Environmental Protection (DEP) for the conversion and

operational testing of Exploratory Well 2 (EW-2) into Injection

Well 1 (IW-1), construction and operational testing of Injection

Well 2 (IW-2), and incorporation of separately permitted Dual

Zone Monitoring Well (DZMW-1) into an injection well system for

the disposal of industrial wastewater at the West Coast Energy

Center (WCEC) to be operated by Applicant (Application).

On September 13, 2007, DEP issued a Notice of Intent to

Issue Permit, which is Permit No. 247895-007-UC (Permit).

On October 25, 2007, Petitioners Palm Beach County

Environmental Coalition (Coalition) and Peter Tsolkas (Tsolkas)

filed an Amended Petition to rescind the proposed issuance of

"the permit" to construct and operationally test IW-1, IW-2, and

DZMW-1, although the only relief that they sought was directed

to the permit for IW-1 and IW-2. The Amended Petition states

that Petitioners Coalition (and its members) and Tsolkas use the

Loxahatchee National Wildlife Refuge for hiking, canoeing, and

viewing wildlife and that the refuge is in the "zone of

endangering influence." The Amended Petition raises a variety

of issues, including that nearby blasting creates seismic

disturbances that, inferentially, would adversely affect the

wells; DEP has not analyzed the groundwater in the vicinity of

the wells, the groundwater proposed to receive the injected

fluids, the fluids proposed to be injected into the two

injection wells, and the complex lithological formations; and

the proposed permit would fail to protect the aquifer into which

the fluids would be injected. The Amended Petition requests

that DEP deny the Permit application and require that Applicant

demonstrate that any injection activity would contain the

injected fluids in the receiving aquifer for 10,000 years. The

Amended Petition was assigned DOAH Case No. 07-5047.

On October 29, 2007, Petitioner Alexandria Larson (Larson)

filed an Amended Petition to rescind "the permit" for IW-1,

IW-2, and DZMW-1. Petitioner Larson alleges that she lives

within the "zone of endangering influence" and hikes and views

wildlife in the Loxahatchee National Wildlife Refuge, which is

also in the "zone of endangering influence." The Amended

Petition was assigned DOAH Case No. 07-5062.

On October 16, 2007, Petitioner Michael Christensen

(Christensen) filed an Amended Petition to rescind "the permit"

for IW-1, IW-2, and DZMW-1. Petitioner Christensen alleges that

he is a taxpaying resident of Palm Beach County; hikes, fishes,

and watches birds in the Loxahatchee National Wildlife Refuge;

and operates a fish farm in Palm Beach County. The Amended

Petition was assigned DOAH Case No. 07-5063.

By Order Consolidating Cases entered November 7, 2007,

these three cases were consolidated with DOAH Case Nos. 07-3881

and 07-4744, which had been commenced by Southern States Land

and Timber, LLC. However, after a voluntary dismissal filed by

the petitioner in each of these cases, DOAH Case Nos. 07-3881

and 07-4744 were dismissed by Order Closing Files entered

November 21, 2007. In this Order, the Administrative Law Judge

relinquished jurisdiction over the proposed permit for the

DZMW-1, 1 and DEP has since issued the permit for the construction

and operational testing of DZMW-1. The above-styled cases

therefore involve only the Permit, which pertains exclusively to

the construction and operational testing of IW-1 and IW-2.

On December 21, 2007, Applicant filed a Motion to Strike

and Motion in Limine directed to four allegations in the

petitions: cumulative "affects," global warming, risk analysis,

and air pollution. By Order entered January 15, 2008, the

Administrative Law Judge granted the motion. The cases were

transferred to the undersigned Administrative Law Judge on

January 16, 2008. At the start of the hearing, petitioners

orally requested a rehearing on the motion. Counsel for

Petitioners Coalition and Tsolkas stated that he had not

received notice of the motion. Allowing the parties a rehearing

on the Motion to Strike and Motion in Limine, the Administrative

Law Judge allowed extensive argument on all four issues and

granted the Motion to Strike and Motion in Limine.

On January 15, 2008, the parties filed a Pre-Hearing

Stipulation and, on January 18, 2008, they filed an Amended Pre-

Hearing Stipulation (Stipulation). The Stipulation states that

these cases involve challenges to the proposed permit for IW-1

and IW-2. The Stipulation states that Applicant's position is

that it has provided reasonable assurance that its injection of

wastewater into the proposed wells meets all applicable

regulatory criteria of DEP and that petitioners lack standing to

bring this proceeding. As needed, facts from the Stipulation

are incorporated into the findings of fact.

At the hearing, Petitioners collectively called five

witnesses and offered into evidence 18 exhibits: Coalition

Exhibit Nos. 1-3, Larson Exhibit Nos. 3, 6-11, and 13-15, and

Christensen Exhibit Nos. 1-5. Respondent Applicant called four

witnesses and offered into evidence 25 exhibits: FPL Exhibit

Nos. 1-4, 7-9, 11, 13-14, 16-27, 29, and 31-32. Respondent DEP

called one witness and offered into evidence two exhibits: DEP

Exhibit Nos. 1 and 2. Four persons offered public comment, and

one person offered Public Exhibit Nos. 1 and 2. All exhibits

were admitted except Larson Exhibit Nos. 3, 10, and 13,

Christensen Exhibit No. 4, Public Exhibit No. 2, and FPL Exhibit

32, which were proffered. FPL Exhibit No. 27 was admitted, but

not for the truth of its contents.

Rosa Durando, one of the witnesses of Petitioner Alexandria

Larsen, was unable to testify at the hearing due to a recent

hospitalization. The Administrative Law Judge gave Petitioner

Alexandria Larsen leave to take the testimony of Ms. Durando at

anytime on or before February 15, 2008. The Administrative Law

Judge stated that this could be done by deposition or, if he

were available, testimony with the witness, attorneys, and judge

participating by telephone. The Administrative Law Judge also

granted Petitioner Alexandria Larsen leave to use prepared

direct testimony to spare Ms. Durando some of the stress of

testifying. The Administrative Law Judge stated that he would

allow the parties to file supplemental proposed recommended

orders to address the evidence provided by Ms. Durando, if she

testified. At the time of the final hearing, it was unclear

whether Ms. Durando would be well enough to testify within the

timeframe established by the Administrative Law Judge, but the

Administrative Law Judge indicated that he would not be able to

leave the record open beyond that time. After the conclusion of

the hearing, Petitioner Alexandria Larsen did not file a request

to take the testimony of Ms. Durando, so the record closed

without her testimony.

The court reporter filed the transcript on January 30,

2008. The parties filed proposed recommended orders by

February 12, 2008.

On February 25, 2008, the Administrative Law Judge wrote a

letter to counsel for the Department of Environmental

Protection, with a copy to all parties, asking for certain

omitted attachments to FPL Exhibit No. 13. Counsel filed the

omitted exhibits on the same day.

FINDINGS OF FACT

1. Applicant is Florida's largest electric utility. It

provides service to over 4.4 million customer accounts in 35

counties. Applicant operates 14 electric-generating sites in

Florida to satisfy its statutory obligation to furnish each

person applying for service reasonably sufficient, adequate, and

efficient service upon the conditions set forth by the Public

Service Commission.

2. By Final Order Approving Certification dated

December 26, 2006, the Siting Board granted full and final

certification to Applicant for the location, construction, and

operation of the WCEC project, Units 1 and 2, to an immediate

capacity of 2500 megawatts and to an ultimate capacity of 3300

megawatts (3800 megawatts, according to the Stipulation).

Applicant anticipates obtaining permits for a third deep

injection well and second dual zone monitoring well when the

third generating unit is constructed.

3. Units 1 and 2 at the WCEC will be combined cycle power

plants that produce power by the ignition of a combination of

natural gas and compressed air that force expanding air through

turbines that are connected by shafts to generators. The waste

heat produced by this process is recovered by steam generators

that, using steam turbines, turn shafts connected to other

generators, thus improving the efficiency of the power-

production process. Applicant owns and operates 12 combined

cycle power plants.

4. The certification issued by the Siting Board authorizes

Applicant to power the plant by natural gas or ultra-low sulfur

light fuel oil, which is diesel fuel. Diesel fuel is a backup

source if natural gas is unavailable. The WCEC will store 12.6

million gallons of diesel in two onsite tanks, which are

segregated from the rest of the site by secondary containment in

the form of reinforced concrete that contains no drains.

5. The Final Order of the Siting Board describes, but does

not itself permit, an onsite wastewater disposal process using a

deep well injection system consisting of two 3200-foot deep

injection wells and a dual zone monitoring well. WCEC Units 1

and 2 would be the first power units operated by Applicant to

use deep well injection for the disposal of wastewater

associated with the production of power. Other plants operated

by Applicant use cooling ponds, such as a 6000-acre cooling pond

at its power plant in Martin County. The WCEC sits on only 220

acres, so Applicant could not have constructed a sufficiently

large onsite pond to accept the wastewater from the operation of

Units 1 and 2. Although Applicant operates power plants on

smaller sites, such as the 350-megawatt Cutler plant on 40

acres, the WCEC is a very small site given the power generating

capacity of the facility.

6. The WCEC is in west Palm Beach County 20 miles due west

from the Atlantic Ocean and 25 miles southeast of Lake

Okeechobee. Draining Lake Okeechobee, the L-10/L-12 canal

passes immediately adjacent to the WCEC site on the south side

of State Road 80, which runs along the southern border of the

WCEC site. Immediately across State Road 80 from the WCEC site,

about 1000 feet to the south, is the Arthur R. Marshall

Loxahatchee National Wildlife Refuge (National Wildlife Refuge).

The WCEC abuts a quarry operated by Palm Beach Aggregates (PBA

Quarry). Already located adjacent to the WCEC is Applicant's

Corbett transmission substation and high-voltage transmission

lines.

7. Petitioner Coalition is a member-based, unincorporated

association that has been in existence for at least five years

and serves, among other things, as an umbrella organization for

other environmental organizations. As an umbrella organization,

Petitioner Coalition facilitates the coordination, among these

other organizations, of efforts to educate the public about the

environment, assess threats to the environment, take action to

protect the environment, and participate in recreational

activities involving regional natural resources. Petitioner

Coalition directly performs these tasks and engages in these

activities, as well.

8. Petitioner Coalition conducts monthly meetings that are

attended by 15-25 persons, although it maintains a mailing list

of about 400 persons, who constitute its membership. About

80-90 percent of the members of Petitioner Coalition reside in

Palm Beach County; two members reside within 1.5 miles from the

WCEC site. Many more members reside in the Loxahatchee and

"Acreage" areas, which are not far from the National Wildlife

Refuge and WCEC site. Petitioner Coalition does not charge

dues, but collects donations from members and other persons.

Each year, Petitioner Coalition conducts two larger conferences,

which are open to the public.

9. Members of Petitioner Coalition regularly use the L-8

canal, which borders the east side of the WCEC site. The

"20-mile bend" entrance to the National Wildlife Refuge is

one-half mile west of the WCEC site, and many members of the

Coalition use this entrance to enter the refuge for hiking,

running, biking, bird-watching, canoeing, fishing, and other

outdoor activities. The vast National Wildlife Refuge forms

important headwaters for the Everglades.

10. Petitioner Tsolkas is the chairperson of Petitioner

Coalition and engages in the member activities described above.

11. Petitioner Larson resides in Loxahatchee, about 2.5

miles east of the WCEC site. She resides on a 1.63-acre lot and

relies for her potable water on a well drilled about 125 feet

deep into the surficial aquifer.

12. Petitioner Christensen resides about 3 miles from the

WCEC site. He has hiked and observed wildlife in the National

Wildlife Refuge, as well as drawn spiritual comfort from this

natural resource. As noted in the Preliminary Statement, the

permitting of IW-1 and IW-2 is at issue in these cases. The

proposed injection well system comprises these wells and DZMW-1,

which has been permitted and is under construction. One other

well is of interest in this case, Exploratory Well 1 (EW-1).

13. On April 25, 2006, Applicant commenced the drilling of

EW-1. The purpose of this project was to obtain data to

determine the suitability of the WCEC for the onsite, deep well

injection of non-hazardous industrial waste. For EW-1,

Applicant obtained from DEP Permit No. 247895-001-UC, which was

issued on January 11, 2006.

14. Applicant intended to drill EW-1 to a depth of 3400

feet, determine that the location was suitable for an injection

well system, and convert EW-1 to a dual zone monitoring well,

but EW-1 instead became what could be deemed a functional

alternative injection lesson (FAIL) well. The most immediate

information derived from this FAIL well was that, at 2230 feet

depth, a dredge zone existed at the location of EW-1. Although

the bore hole initially reached 2510 feet, the well itself could

not be extended deeper than 2220 feet.

15. A dredge zone is a fracture zone of uncertain

thickness in a confining unit. At the site of EW-1, the dredge

zone extends through at least much of the upper half of the

confining unit directly above the proposed injection. Thus,

Applicant did not obtain from EW-1 a complete picture of the

critical confining zone. However, Applicant obtained

information, from top to bottom, about the depths of the

surficial aquifer, upper and lower limits of the Upper Confining

Unit, upper and lower limits of the Upper Floridan Aquifer, and

depth of the point at which, near the bottom of the Upper

Floridan Aquifer, total dissolved solids (TDS) exceed 10,000

mg/L. As noted in the conclusions of law, the depth at which

the water crosses this TDS threshold marks the deepest extent of

an underground source of drinking water (USDW).

16. The data obtained from drilling EW-1, especially the

geophysical logs, supported analysis that the top of the Upper

Floridan Aquifer is 920 feet deep and the bottom is 1700 feet

deep, the top of the Middle Floridan Confining Unit is 1700 feet

deep and the bottom is 2005 feet deep, the base of the USDW is

1890 feet deep, and the top of a "fractured and transmissive"

interval (i.e., the dredge zone) is 2005 feet and the bottom is

2240 feet deep. FPL Exhibit 13, Technical Memorandum from David

McNabb, LBFH, Inc., to DEP and Applicant dated December 14,

2006, page 10. As noted below, the analysis of the data was

incorrect as to the bottom of the Middle Floridan Confining

Unit, probably because drilling of EW-1 did not extend past the

dredge zone. Also, as noted below, later water quality testing

established a slightly deeper USDW, between 1930-1941 feet deep.

17. The unconsolidated material in a dredge zone tends to

fall into the drill hole after penetration by the drill bit.

The inflow of material slows the drilling because it is

necessary to grind up and remove the material that has fallen

into the drill hole. The small drill bit used for EW-1 meant

that the grinding and removal process was slow.

18. A dredge zone does is not necessarily indicative of

vertically extensive fractures or fissures or poor confinement

in the formation containing the dredge zone. Also, a dredge

zone typically extends only a limited distance laterally. Thus,

the significance of the dredge zone is largely restricted to the

impediment that it presented to drilling.

19. FPL Exhibit No. 13 is the EW-1 Final Report.

Attachment K sets forth the pilot hole water quality field data

and laboratory analysis. The TDS values are all under 10,000

mg/L. The highest TDS value is 9234 mg/L, which is at 1930 feet

deep. This is the deepest point from which a pilot hole water

sample was taken.

20. FPL Exhibit No. 13, Attachment L to sets forth the

data and analysis from straddle-packer testing (packer testing)

Packer testing is a more elaborate testing process that involves

inserting two rubber stoppers, or packers, at intervals into the

well and inflating them, so as to isolate the interval between

them. Prior to testing, the water is allowed to settle from the

disturbance of drilling. The rate at which the water level

recovers in the interval is a measure of permeability and

indicates whether the packers are in a confining unit or an

aquifer. Packer testing examines only the native groundwater,

not the drilling-bit coolant, so it produces more reliable

water-quality data than testing of pilot hole water.

21. The deepest packer test is 1924-1941 feet, at which

interval TDS are 18,696 mg/L. At 1848-1865 feet, TDS are 9664

mg/L. At 925-1055 feet, which is the only other interval

tested, TDS are 4148 mg/L.

22. After several weeks of trying unsuccessfully to

penetrate past the dredge zone and given the exigencies of time,

Applicant abandoned the project to drill EW-1 to a sufficient

depth that it could be incorporated into an injection well

system. By "Minor Modification" to Permit No. 247895-001-UC,

dated August 10, 2006, DEP permitted Applicant to convert EW-1

to a monitoring well in the Upper Floridan Aquifer, which

Applicant anticipates may be tapped by water supply wells on the

site sometime in the future. Applicant then backplugged the

pilot hole to create a monitoring interval of 1015-1100 feet

depth. After successfully pressure testing EW-1, Applicant

filed a Well Completion Report showing a completion date of

August 22, 2006.

23. On December 11, 2006, Applicant began drilling EW-2.

Applicant chose a location 6000 feet south of EW-1 for the

location of EW-2 to avoid the dredge zone that it had

encountered when drilling EW-1. In an abundance of caution,

though, Applicant used a larger-diameter drill bit, so that, if

it encountered another dredge zone, it would be able to grind

and remove the fallen materials more easily. The permit number

for EW-2 is 247895-002-UC, which was issued on December 6, 2006.

24. FPL Exhibit No. 16 is the Final Report on EW-2.

Applicant successfully drilled the pilot hole at EW-2 to a depth

of 3411 feet and completed drilling on May 4, 2007. The data

obtained from EW-2 established the bottom of the Upper Confining

Unit at 975 feet deep, the top of the Upper Floridan Aquifer at

975 feet and the bottom at 1905 feet, the base of the USDW at

1932-1959 feet, the top of the Middle Floridan Confining Unit at

1905 feet and the bottom at 2665 feet, and the top of the Lower

Floridan Aquifer, which is known as the Boulder Zone in this

region, at 2665 feet.

25. The drilling, which stopped at 3411 feet, did not

establish the bottom of the Boulder Zone. Because EW-2 was not

permitted, at that time, as an injection well, Applicant could

not inject fluids into the well to learn more of the nature of

the injection zone. However, it is clear that the Boulder Zone

is a highly transmissive (due to its thickness), fractured, and

cavernous interval within the Lower Floridan Aquifer. These

factors militate against a build-up in pressure at an injection

site in the Boulder Zone. It is also clear that the Boulder

Zone presents low horizontal hydraulic conductivity, which

suggests that injected fluid will travel only a few feet per

year.

26. FPL Exhibit No. 16, Attachment N contains the pilot

hole water quality data. The pilot hole water quality data

reveals an abrupt increase in TDS from 4800 mg/L at 2030 feet to

13,000 mg/L at 2060 feet. After remaining at least 30,000 mg/L

from 2100 feet to 2300 feet, TDS drops abruptly to 20,000 mg/L

at 2330 feet and then drops steadily (with one minor increase)

from 2330 feet to 2630 feet, where TDS falls to 9860 mg/L. TDS

remains below 10,000 mg/L from 2630 feet to 2730 feet; at 2800

feet, TDS reaches 30,000 mg/L and remains at this level (with

two minor exceptions) to the deepest sampling depth of 3400

feet.

27. The pilot hole testing does not suggest that a deeper

USDW occurs at 2330-2630 feet; rather, these data signal an

extremely unproductive layer within the Middle Floridan

Confining Unit. Applicant drilled these wells using a closed

circulation system, which necessitates the introduction at

specific intervals of external-source freshwater to cool the

drilling bit. The rate of introduction may reach 50 gallons per

minute. The EW-2 Final Report notes the "extremely unproductive

nature of the test interval" sampled by the last packer test,

which is noted below to be at 2624-2642 feet, where the sampled

zone produced less than a quart of water per minute with 175 of

water level drawdown. FPL Exhibit No. 16, page 18. If

Applicant were introducing anything approaching 50 gallons per

minute at this depth, the pilot hole water test was essentially

of the introduced freshwater, not native groundwater.

28. FPL Exhibit No. 16, Attachment P contains the packer

test data. Applicant packer tested five intervals: 1914-1932

feet, 1959-1987 feet, 2009-2027 feet, 2169-2187 feet, and

2624-2642 feet. TDS values for each of these intervals are 8060

mg/L, 21,400 mg/L, 24,100 mg/L, 37,300 mg/L, and 32,800 mg/L. 2

These results confirm the base of the USDW at around 1930 feet

and confirm that no USDW exists at 2624-2642 feet.

29. FPL Exhibit No. 16, Attachment R reports the results

from the sampling of the groundwater after the withdrawal of

130,000 gallons from the bottom of EW-2. TDS is 35,000 mg/L,

which is the TDS of saltwater, and pH is 8.16, which is slightly

base. The sampling revealed iron, sodium, zinc, arsenic,

barium, chromium, manganese, chloride, fluoride, ortho-

phosphate, sulfate, cyanide, two nitrogens, and phosphorus. The

water sample also tested positive for radium-226 and radium-228.

30. FPL Exhibit No. 16, Attachment O is the Core Sample

Laboratory Report. This covers multiple samples from four rock

cores: one core within the Upper Floridan Aquifer, two cores

within the Middle Floridan Confining Unit, and one core within

the Boulder Zone. Analysis of these samples indicates the

vertical hydraulic conductivity of the rock cores within each of

these units.

31. The first rock core includes three samples from three

depths: 1956 feet, 1960 feet, and 1962 feet. The tested

vertical hydraulic conductivities are in the range of 10 -6 to 10 -7

cm/second. 3 According to the information obtained from drilling

EW-2, these depths are the lower part of the Upper Floridan

Aquifer. (According to the information obtained from drilling

EW-1, which is 6000 feet to the north, these depths are in the

Middle Floridan Confining Unit.)

32. The second rock core includes three samples from three

depths: 2048 feet, 2062 feet, and 2065 feet. The tested

vertical hydraulic conductivities are 10 -3 , 10 -9 , and 10 -8

cm/second, 4 respectively, even though, according to the

information obtained from drilling EW-2, these depths are all in

the upper part of the Middle Floridan Confining Unit. The third

rock core includes two samples at two depths: 2193 feet and

2200 feet. The tested vertical hydraulic conductivities are 10 -6

and 10 -4 cm/second, 5 respectively. The third rock core is also

in the upper part of the Middle Floridan Confining Unit.

33. The fourth rock core includes one sample: at 2828

feet, which is 100 feet into the Boulder Zone. The tested

vertical hydraulic conductivity is 10 -8 cm/second. 6

34. The rock core data evidently present an incomplete

picture of the hydrogeology. For instance, although the third

rock core is 200 feet down from the top of the Middle Floridan

Confining Unit, it displays higher tested vertical hydraulic

conductivities than those displayed by the rock core taken from

the Upper Floridan Aquifer. The second lowest vertical

hydraulic conductivity among rock cores is found, not in the

Middle Floridan Confining Unit, but in the Boulder Zone (which

militates further against upward migration of the injected

fluid). However, the highest vertical conductivity among rock

cores is found, not in an aquifer, but in the Middle Floridan

Confining Unit, although within 50 feet of the top of this unit

(suggestive perhaps of some unevenness in the top of this

confining unit). Two of the three values for vertical hydraulic

conductivity in the rock core of the Upper Floridan Aquifer are

one to three orders of magnitude lower than the values for

vertical hydraulic conductivity in the rock core 200 feet below

the top of the Middle Floridan Confining Unit. All of these

results are assessments of only a few feet of rock within

hundreds of feet of aquifer and confining unit and do not

reflect other factors, such as porosity, which is a measure of

how much rock is open space.

35. FPL Exhibit No. 16, Attachment I is the Lithologic Log

for EW-2. This log reports the composition of formations, as

well as porosity and permeability. For the most part, the

materials above 2000 feet are limestone with moderate to high

porosity that are poorly to moderately consolidated. A band of

dolomite, mostly well consolidated, replaces limestone from 1670

feet to 1720 feet. After a couple of hundred feet of limestone,

dolomite again predominates over limestone at about 1900 feet

and extends down nearly 2200 feet, where a 70-foot band of

dolomite occurs, followed by a band of predominantly limestone

from 2620 feet to 2840 feet. From 2840 feet down, which is the

Boulder Zone, dolomite predominates. From 2870 feet to 2910

feet, the unit is of low porosity and well consolidated. The

only reports of permeability at these depths indicate poor or

fairly poor permeability from 2620 feet to 2700 feet, then

predominantly poor permeability with some fair permeability from

2700 feet to 2760 feet, and then fair permeability from 2760

feet to 2790 feet, which is the lowest 30 feet of the Middle

Floridan Confining Unit.

36. FPL Exhibit No. 16, Attachment D states that the pilot

and reamed holes deviates only 1/4 of a degree through 3400

feet. This is important because, if the reaming for the well

casing does not follow the pilot hole, the uncased pilot hole

may be left as a vertical passage for water to penetrate through

confining units.

37. The construction of EW-2 includes the installation

through the duration of the well of progressively smaller steel

casings with the following diameters, from top to bottom:

72 inches, 60 inches, 48 inches, 36 inches, and 20 inches (which

runs nearly the entire length of the well). The thickness of

the casing wall is 3/8 inch, except for the final segment which

is 1/2-inch thick and seamless.

38. The inside and back of all casings, except the final

casing, are encased in American Society of Testing and Material

(ASTM) C150 Type 2 cement, which is suitable for use in saline

water. The final casing (the 20-inch diameter) is encased only

on the back. The cement on the outside of the exterior casing

is added in such quantities to ensure that it forms a tight bond

between the casing and the confining formation wall. To ensure

the efficacy of the bonds formed by the cement, Applicant

conducts temperature tests, a video survey, and radio tracer

surveys.

39. On the inside wall of the 20-inch casing, upon

conversion of EW-2 to IW-1, will run a reinforced fiberglass

pipe or tube. At the base, a packer isolates the fluid-filled

annulus, or space, between the injection tubing and the final

casing, and a corrosion inhibitor is injected into that space.

No injection well using this form of tubing and packer

construction has ever provided a vertical channel for water from

the injecting zone (or above) to pass up through a confining bed

and into an USDW.

40. After final analysis of all of the available data, the

Final Report for EW-2 concludes that the top of the Boulder Zone

is at 2790 feet, the top of the Middle Floridan Confining Unit

is at 2000 feet and the bottom is at 2790 feet, and the base of

the USDW is 1932-1959 feet. These depths are all credited,

although the top of the Middle Floridan Confining Unit is

probably 100 feet deeper, so that the thickness of this unit is

around 700 feet, not 800 feet. The Final Report recommends that

EW-2 be converted to a Class I deep injection well, with an

injection zone from 2778 feet to 3411 feet, for the disposal of

non-hazardous waste from the WCEC.

41. On March 2, 2007, Applicant submitted an application

for the construction and operational testing of DZMW-1 at the

site of EW-1. This application resulted in the issuance of

proposed Permit No. 247895-006-UC, which, as noted above, became

final when another petitioner in two other cases withdrew its

challenge to the proposed permits for DZMW-1 and IW-1 and IW-2.

Pending completion of the analysis of the data from EW-2, the

proposed permit for DZMW-1, which is dated June 5, 2007, states

that the upper monitoring zone is anticipated to be 1955-1975

feet deep, and the lower monitoring zone is anticipated to be

2160-2180 feet deep. These depths represent, respectively,

conservatively deep values for the base of the USDW and the top

of the Middle Floridan Confining Unit (even if it is 100 feet

deeper than reported). The record contains no reports from the

construction of DZMW-1, perhaps because work had not progressed

very far at the time of the final hearing.

42. On April 25, 2007, Applicant submitted the

Application, which is FPL Exhibit No. 19. The Application is

for approval to convert EW-2 to IW-1, construct IW-2, and

operationally test both wells. Besides completed forms, the

Application comprises the Supporting Information for

Construction Permit Applications for a Class I Deep Injection

Well System at the Florida Power & Light Company West County

Energy Center (Supporting Information), one table, 11 figures,

and ten attachments.

43. As stated in the Stipulation, the Application was

signed by a responsible corporate officer of Applicant, and

Applicant has also satisfied all financial-responsibility

requirements. As stated in the Stipulation, a public meeting on

the Application took place on September 10, 2007. DEP received

public comments on the Permit and submitted a written response

to these comments. On September 13, 2007, DEP issued the Notice

of Intent for Permit. DEP also prepared a fact sheet for the

proposed Permit.

44. Attachment F describes the construction specifications

for IW-1, which, as EW-2, was largely finished at the time of

the Application, and IW-2. For the conversion of EW-2 to IW-1,

Applicant proposed to install 2770 feet of 16-inch diameter

fiberglass reinforced pipe and fill the annular space between

this tubing and the 20-inch casing with a specified solution, as

well as conduct various tests of annular pressure and the

injection well. For the construction of IW-2, Applicant

proposed almost the same technique already described as to IW-1,

although the casings were smaller in diameter, probably due to

the elimination of concerns about encountering a dredge zone.

45. The Supporting Information discusses the overall

injection well system. The DZMW-1 is to monitor intervals above

and below the base of the lowermost USDW at the site. DZMW-1

will be 145 feet west of EW-2 and will provide monitoring for

IW-2, which, according to Figure 2, will be within 150 feet west

of DZMW-1. The injection capacity of each injection well is

7.29 million gallons per day (mgd) at an injection velocity of

10 feet per second. Supporting Information, page 2. Based on

projected power demands, Applicant anticipates that each

operating injection well will operate at an average rate of 5

mgd. Average and maximum injection pressures will probably be

40 pounds per square inch (psi) and 50 psi.

46. The purpose of IW-2 is to serve as a "back-up" to

IW-1. Supporting Information, pages 2 and 5. Applicant is

constructing two injection wells so that "when one well is out

of service, flows will be diverted to the operating well."

Supporting Information, page 5.

47. As authorized by the certification issued by the

Siting Board, the principal water sources for WCEC Units 1 and 2

are the Upper Floridan Aquifer and the L-10/L-12 canal, as the

South Florida Water Management District determines that this

surface water is available for withdrawal. Applicant will also

obtain potable water from Palm Beach County.

48. WCEC Units 1 and 2 require 14.5 mgd of water. The

principal water uses of the WCEC Units 1 and 2 are cooling tower

water and process water, as well as potable water for use in the

administration building. The cooling tower wastewater (also

known as "blowdown") is the water that has cooled the power

generating equipment and itself been cooled in the cooling

towers. Cooling tower blowdown makes up 88 percent of the

wastewater generated by the WCEC Units 1 and 2. The process

water is water that has been demineralized by reverse osmosis

and makes up for the water lost in the steam-generating process.

The resulting wastewater is the heat recovery steam generator

(HRSG) blowdown, which makes up 6.5 percent of the wastewater

generated by WCEC Units 1 and 2. The power generating process

recycles its cooling and process waters, but constantly removes

slipstream to maintain balanced chemistry and avoid scaling from

excessively base water that will damage the equipment.

49. Another 5 percent of the wastewater generated by WCEC

Units 1 and 2 will be derived from the reverse osmosis process,

which generates water for the HRSG. The remaining 0.5 percent

of wastewater is derived from miscellaneous wastewater streams.

50. The Supporting Information states that an analysis of

the injection fluid is not available and is not anticipated to

be available prior to plant start-up. However, the Supporting

Information states: "A sample of the injection fluid will be

collected within the first 30 days of commercial operation of

the power generating facility." FPL Exhibit No. 19, Supporting

Information, page 5.

51. FPL Exhibit No. 19, Attachment G identifies

anticipated wastestreams. Based on "analytical

characterization" of "historical data," Applicant will determine

that the cooling tower blowdown, HRSG blowdown, demineralizer

and reverse osmosis water, pretreatment wastewater, steam cycle

water treatment, and miscellaneous wastewater streams are not

hazardous and dispose of them into IW-1 or IW-2. Based on its

vendors' "analytical characterization" of the chemicals that

they supply, Applicant will determine that the cooling system

water ("biocide additional chlorine, scale inhibitor,

pretreatment chemicals") and leak-tracing dyes are not hazardous

and dispose of them into IW-1 or IW-2. Based on "process

knowledge," Applicant will determine that its treated sanitary

wastewater is not hazardous and dispose of it into IW-1 or IW-2.

This is the only non-industrial wastewater that Applicant

proposes to inject into the injection well system, and the only

wastewater whose hazardous/non-hazardous determination will be

based explicitly on "process knowledge." Lastly, based on

"analytical characterization" of the "wastestream," Applicant

will determine whether the wastewater from the chemical cleaning

of the HRSG and pre-boiler piping is hazardous. If so,

Applicant will dispose of this wastewater by a licensed approved

vendor. If not, Applicant will dispose of this wastewater into

IW-1 or IW-2. Although an industrial wastewater, this chemical-

cleaning wastewater is the only wastewater that Applicant or its

agent will test and the only wastewater that Applicant

anticipates may be hazardous.

52. Attachment G adds that intermittent shock chlorine or

other biocides will be used to prevent biofouling of the cooling

system, and a chlorine solution will be fed into the cooling

tower. A scale inhibitor, including sulfuric acid, will be

added to the circulating water system to control the formation

of calcium carbonate scales that can adhere to heat-transfer

surfaces and impede coolingeated sanitary wastewater from

an onsite package plant will be recycled to the cooling tower or

disposed of directly through the injection well system. The

chemical cleaning of the HRSG and pre-boiler piping is done

during commissioning and periodically during the life of the

plant. According to testimony, such cleaning, which may release

chromium from the boiler tubes, is performed once every ten

years.

53. FPL Exhibit No. 19, Attachment H is the Proposed

Monitor Program. For IW-1 and IW-2, at start-up, Applicant will

test for primary and secondary drinking water parameters and

standards. Continuously, Applicant will test these wells for

flowrate and wellhead pressure. For the wastestream entering

IW-1 and IW-2, Applicant will test weekly for TDS, chloride,

specific conductivity, pH, and temperature. For DZMW-1,

Applicant will test for primary and secondary drinking water

parameters and standards prior to start-up. Continuously,

Applicant will test this well for water level. Weekly,

Applicant will test DZMW-1 for the five items for which it tests

the wastestream plus total phosphorous, sulfate, sodium,

calcium, magnesium, potassium, carbonate, and bicarbonate.

After operational testing and DEP approval, Applicant will

decrease the frequency of testing from weekly to monthly.

54. The Supporting Information calculates the Area of

Review by determining the "zone of endangering influence," which

is the lateral area in which the buoyant forces or increased

pressure in the injection zone may cause migration of the

injected or formation fluid into a USDW. The Area of Review is

the land overlying the zone of endangering influence.

55. The calculations are conservative because they assume

that IW-1 and IW-2 are operated at each well's maximum permitted

injection rate (7.29 mgd each) for ten years. Using a 200-foot

high injection zone and 20 percent porosity for the injection

zone, Applicant calculated that the radius of the bubble of

injected fluid, from the point of injection, would extend 7526

feet. Applicant rounded this result off to two miles.

56. No well, besides EW-2/IW-1, penetrates to the Middle

Floridan Confining Unit within two miles of the proposed

injection well system. Thus, Applicant was not required to

undertake any Corrective Action to preclude the possibility that

such wells could allow fluid to enter the USDW.

57. The Permit is for the conversion and operational

testing of EW-2 into IW-1, construction and operational testing

of IW-2, and eventual incorporation of DZMW-1 into the subject

injection well system. The Permit notes that the anticipated

depth of IW-2 is 3250 feet, although field data will determine

the final depth required for this injection well. The Permit

notes that IW-1 is 3400 feet. The Permit states that the

injection level for each well will be in the Boulder Zone from

about 2775 feet to the total depth of each well, which is a

vertical range of around 600 feet, at last as to IW-1. The

Permit states that the Class I injection well system is designed

for use at the WCEC for non-hazardous wastewater, primarily

cooling tower blowdown.

58. Permit Specific Condition 1.a requires proper

operation and maintenance, including adequate staffing and

training and adequate laboratory and process controls.

Specific Condition 1.d prohibits any injection that causes or

allows movement of fluid into a USDW, except as authorized by 40

C.F.R. §§ 146.15 and 146.16. 7

59. Permit Specific Condition 2.h specifies the

requirements to convert EW-2 to IW-1. These include taking a

video survey of the length of the 20-inch diameter casing,

installing 2770 feet of 16-inch diameter fiberglass reinforced

pipe tubing, filling the entire annulus between the fiberglass

reinforced pipe tubing and the final casing with a specified

solution, conducting a pressure test of the fluid-filled

annulus, performing a radioactive tracer survey, and conducting

a preliminary capacity injection test.

60. Permit Specific Condition 2.i specifies the

requirements to construct IW-2. These are similar to those

described above in the construction of EW-2/IW-1 except that the

initial casings are somewhat smaller.

61. Permit Specific Condition 2.j requires Applicant to

add DZMW-1 to this Permit, either separately under its permit

number or under the Permit number. This condition requires

Applicant to take samples and determine the ambient groundwater

quality in both zones of the DZMW-1 prior to the injection of

any fluids into IW-1 or IW-2. Four weeks prior to use of IW-1

or IW-2, Applicant must start weekly sampling of the monitoring

zones.

62. Permit Specific Condition 2.l requires packer tests in

the anticipated confining zone. Permit Specific Condition 2.m

provides that Applicant shall use the DZMW-1 to monitor the

confinement of the injection zone from overlying aquifers. The

upper zone is the compliance point as to the USDW, and the lower

zone is the compliance point as to vertical movement out of the

injection zone.

63. Permit Specific Condition 2.n requires Applicant to

demonstrate confinement for IW-2 by using lithologic properties,

geophysical evidence, and tests performed while pumping the

formation. These requirements require proof of confinement

during the drilling of IW-2.

64. Permit Specific Condition 4.g requires DEP approval,

pursuant to Florida Administrative Code Rules 62-528.401(4)(c),

62-528.420(4)(c), and 62-528.605(2), of the final selection of

specific injection intervals.

65. Permit Specific Condition 4.i requires that Applicant

provide certain justifications for each request of a short-term

injection test for IW-1 and IW-2. Generally, justification

consists of the documentation to assure that confinement above

the injection zone is intact.

66. Permit Specific Condition 5.b imposes requirements on

Applicant to obtain DEP approval for operational testing.

Specific Condition 5.b.1-4 requires Applicant to provide DEP

with certain materials prior to the approval of DEP for the

commencement of operational testing. These are generally the

documentation to assure that confinement above the injection

zone is intact and the results of the short-term injection test.

This condition notes that, under normal operating conditions,

the velocity of each injection well may not exceed ten feet per

second, although, in a multiple well system, each may run at 12

feet per second when the other well is inoperative due to

testing or maintenance. During the injection test, Specific

Condition 5.b.1-4 requires Applicant to collect injection flow

rate, injection wellhead pressure, and monitoring well pressures

in both zones.

67. Also prior to obtaining DEP approval for operational

testing, Specific Condition 5.b.6 requires Applicant to submit

to DEP "[i]nformation concerning the compatibility of the

injected waste with fluids in the injection zone and minerals in

both the injection zone and the confining zone." Specific

Condition 5.b.9 requires Applicant to provide DEP with a copy of

a draft operation and maintenance manual. Specific Condition

5.b.13 requires Applicant to submit to DEP background water

quality data from the monitoring and injection zones and

analysis of these data for primary and secondary drinking water

standards and minimum criteria parameters.

68. Specific Condition 5.c imposes requirements on

Applicant prior to starting operational testing. Specific

Condition 5.c requires compliance with Florida Administrative

Code Rule 62-528.450(3)(a), (b), and (c), which requires, among

other things, "wastestream analysis."

69. Specific Condition 5.d imposes requirements on

Applicant within 90 days of starting plant operations. This

condition refers to Florida Administrative Code Rules

62-528.425(1)(a) and 62-528.450(2)(f)3 and requires a wastewater

stream analysis for primary and secondary drinking water

standards.

70. Specific Condition 6 imposes requirements on Applicant

during operational testing. Specific Condition 6.a.4 requires

Applicant to monitor the flow to the injection well at the

wellhead and to control the flow to ensure that it does not

exceed the rate at which the well was tested. Pursuant to

Florida Administrative Code Rule 62-528.425(1)(b), Specific

Condition 6.a.5 requires Applicant to continuously monitor the

injection well system by recording and totalizing devices for

effluent flow rate and volume and recording devices for

injection and monitoring zone pressures. Specific Condition

6.a.9 provides: "The injectate shall be non-hazardous in nature

at all times, as defined in 40 CFR, Part 261 and as adopted in

Chapter 26-730, F.A.C."

71. Specific Condition 6.a.10 requires mechanical

integrity prior to injection. Specific Condition 6.a.11

requires Applicant to monitor and control the pressure at the

wellheads to ensure that it does not exceed 66 percent of the

tested pressure on the final casing.

72. Specific Condition 6.a.13 requires Applicant to

monitor the injection system and submit monthly operating

reports to DEP concerning the flow, volume, and wellhead

pressure of the injection well; chemical characteristics of the

wastewater stream in terms of TDS, chloride, specific

conductance, three types of nitrogen, phosphorous, pH, and

sulfate; physical characteristics of the monitoring well,

including daily and monthly maximum, minimum, and average

pressures; and chemical characteristics of the upper and lower

monitoring zones in terms of, weekly, the items listed above

plus total coliform and field temperature and, monthly, sodium,

calcium, potassium, magnesium, iron and bicarbonate. Specific

Condition 6.a.13.c provides that, after at least six months of

weekly monitoring of the monitoring zones, Applicant may, based

on a showing of groundwater stability, request that DEP reduce

the monitoring frequency to monthly.

73. Specific Condition 6.a.19 requires Applicant to submit

annually to DEP a wastewater stream analysis for primary and

secondary drinking water standards and minimum criteria, as

identified on a list attached to the permit. The list

identifies 95 primary drinking water items, including chromium,

and 17 secondary drinking water items, including pH. The list

also identifies 24 municipal wastewater items, such as ammonia,

several volatile organics, two pesticides, biological oxygen

demand, and temperature, which presumably are added because the

wastewater will include effluent from Applicant's onsite package

plant.

74. Petitioners have identified two relevant issues. The

first issue concerns the integrity of the Middle Floridan

Confining Unit in its present state and after construction of

the wells (i.e., well integrity), so as to prevent the injected

fluids from migrating upward into the USDW. The second issue

concerns the composition and volume/pressure of the wastewater

stream (i.e., whether it will meet the Permit criterion

prohibiting hazardous wastes and, even if the injected fluids

meet this criterion, whether the fluids, in terms of their

composition and volume/pressure, will adversely affect the

Boulder Zone and the bottom of the Middle Floridan Confining

Unit).

75. Applicant has provided reasonable assurance that the

bottom of the Upper Floridan Aquifer is about 2000-2100 feet

deep, and the USDW is in the lower reaches of the Upper Floridan

Aquifer at around 1950 feet deep. The water samples from the

packer test preclude the existence of a deeper USDW. Applicant

has provided reasonable assurance that the Middle Floridan

Confining Unit extends from no deeper than 2100 feet to about

2800 feet deep, for a minimum thickness of 700 feet. Applicant

has also provided reasonable assurance that the injecting zone

will be in the Boulder Zone of the Lower Floridan Aquifer, and

the confining unit of the Middle Floridan Confining Unit will

prevent the upward migration of the injected fluids into the

Upper Floridan Aquifer and, thus, the USDW.

76. The Middle Floridan Confining Unit is not homogenous.

At places, it is fractured. At other places, it exhibits

greater permeability and porosity than it does elsewhere. But,

at the location of the proposed injection well system, the 700-

foot thick Middle Floridan Confining Unit is ample insurance

against upward migration of the injected fluids.

77. DEP Program Manager for Underground Injection Control

for the relevant district is Joseph May. Mr. May testified that

he gets "nervous" when confining zones are only 300 feet thick,

"antsy" when they are only 200 feet thick, and skeptical of the

eligibility for a deep well injection permit when the confining

zones are less than 200 feet thick. These are not rule

criteria, nor did Mr. May intend them to be, but these values

are useful in these cases, if only to suggest the suitability of

this relatively thick confining unit to prevent the upward

migration of injected fluids.

78. Other factors, of course, contribute to the efficacy

of the confining unit. First, the Boulder Zone is highly

transmissive, a function of the vast thickness of this zone.

The characteristic tends to reduce the effect of pressure at the

point of injection, relieving the force of pressure that might

otherwise drive the injected fluid up through hundreds of feet

of confining unit. On the other hand, the thickness of the

Boulder Zone and low horizontal hydraulic conductivities suggest

that the injected fluids will not travel far within the Boulder

Zone, so the likelihood of the injected fluid's encountering a

chimney is diminished over time. And, as time passes, the

fluids will take on the characteristics of the native fluids in

the Boulder Zone to the point that they are indistinguishable

from these native fluids. This is particularly important as to

TDS; as the differential in TDS between the injected and native

fluids decreases, so will the buoyancy of the injected fluids.

79. Nor will the injected fluid be especially buoyant.

After five cycles, according to FPL Exhibit No. 25, the water

drawn from the Upper Floridan Aquifer will have 24,505 mg/L of

TDS, which is close to the TDS level of the native groundwater

in the Boulder Zone. After five cycles, according to FPL

Exhibit No. 24, the water drawn from the L-10/L-12 canal will

have 4605 mg/L of TDS, so it will be buoyant, but many times

less buoyant than if not recycled at the power plant.

80. Petitioners rely on the failures of other deep

injection wells as a basis for contending that Applicant has

failed to provide reasonable assurance in this case as to the

integrity of the confining unit. In an interesting turn, they

rely on a recent work by one of Applicant's expert witnesses,

Dr. Thomas Missimer.

81. Dr. Missimer is a prominent licensed geologist with

many years' field experience in Florida's geology and

hydrogeology. Dr. Missimer recently co-authored (with Robert G.

Malivea and Weixing Guo) an article, "Vertical Migration of

Municipal Wastewater in Deep Injection Well Systems, South

Florida, USA," published in Hydrogeology Journal (2007) 15:

1387-96. The focus of this article is on the vertical migration

of municipal wastewater injectate. This low salinity, high

density injection fluid is buoyant relative to the high

salinity, low density water of the Boulder Zone of the Lower

Floridan Aquifer, where the fluid is injected.

82. In the article, Dr. Missimer states that southeastern

Florida hosts 32 active Class I injection wells. Based on his

review of the data, he finds that injected wastewater has

migrated upward into the USDW at three sites: one in Palm Beach

County and two in Dade County. Dr. Missimer finds that injected

wastewater has migrated upward into the monitor zone below the

USDW at another seven sites, all in Broward and Palm Beach

counties. Dr. Missimer emphasizes that municipal wastewater is

susceptible to upward migration due to its greater buoyancy than

the saline water native to the Boulder Zone.

83. Dr. Missimer characterizes the Boulder Zone as an area

of high transmissivity that has received injected fluid wastes

since 1943. A consequence of this high transmissivity is that

the Boulder Zone "allows for minimal increases in pressure

during injection." Coalition Exhibit No. 2, page 1391.

84. Dr. Missimer notes that vertical hydraulic

conductivities in the Middle Floridan Confining Unit vary by

eight orders of magnitude with the dolostones having lower

vertical hydraulic conductivities than the limestones. However,

the main point of the article is to account for the fact that

predicted vertical hydraulic conductivities in some failed

injection wells, based on analyzed rates from core plug data,

understated the actual migration rate of injected fluids by four

orders of magnitude. Coalition Exhibit No. 2, page 1393. 8

85. Dr. Missimer finds that enhanced vertical hydraulic

conductivity in the Middle Floridan Confining Unit is likely due

to fracturing in zones that may have a limited horizontal

extent, creating a chimney through which buoyant injected fluid

can migrate up relatively quickly. Suggesting that well-

construction problems and possibly regional tectonic effects may

have contributed to this fracturing, Dr. Missimer concludes:

"The focus of confinement analysis should, therefore, be on the

extent and distribution of fracturing rather than analyses of

the properties of the rock matrix." Coalition Exhibit No. 2,

page 1395.

86. Most difficult for Petitioners' contentions is the

testimony of Dr. Missimer concerning the thickness of the Middle

Floridan Confining Unit at the subject site and the absence of

fracturing in this unit, based on the sonic logs from EW-2/IW-1.

Dr. Missimer testified that, based on the sonic logs in

particular, there is over 700 feet of unfractured confining unit

over the injection zone, and he has a "high level of confidence"

that no material fracturing exists to undermine the integrity of

this confining unit. Logically, the possibility of a relevant

fracture decreases with the thickness of the confining unit.

87. Nor does the construction of IW-1 and IW-2 provide a

chimney through which the injected fluids can escape the Boulder

Zone and migrate into the USDW. In no respect do the

construction plans for IW-2 or construction or conversion plans

for IW-1 depart from the requirements of DEP's rules or sound

engineering and construction practices. These matters have been

adequately addressed above. In particular, the DEP-imposed

requirement to monitor and document the absence of any deviation

in the orientation of well from the bore hole promises to

eliminate a likely cause of past problems in the construction of

deep wells.

88. Finally, as to the integrity of the Middle Floridan

Confining Unit, Petitioners contend that tectonic forces from

blasting at the PBA Quarry threaten the integrity of the wells. 9

Applicant purchased the WCEC site from the owner-operator of the

PBA Quarry, which is an active limestone-mining operation on

land adjacent to the WCEC site. In connection with the

purchase, Applicant entered into a blasting agreement with the

owner-operator of the PBA Quarry. This agreement imposes

certain requirements on the owner-operator concerning the

maximum size of blasts, minimum separation distances from the

power plant (5000 feet starting June 1, 2006, and 7500 feet

starting June 1, 2007), and coordination and notification

provisions.

89. Although Applicant has no experience with power plants

located in close proximity to blasting operations, for two

reasons, Applicant has provided reasonable assurance that the

nearby blasting will not damage the injection wells (or either

confining unit). First, as noted by the Black & Veatch

geotechnical engineer retained by Applicant to examine the

effects of blasting on the WCEC, excessive vibration, from any

source, trips relays that protect equipment from damage due to

excessive vibration. The most sensitive equipment at the plant

will be the large rotating steam turbines. The Black & Veatch

geotechnical engineer noted that the level of vibration that

will trip these relays is much less than the amount that could

cause any structural damage. These relays will effectively

protect the injection wells from damage from blasting. Long

before vibration from blasting could threaten the integrity of

these wells (and certainly the Middle Floridan Confining Unit),

the relays would trip, and Applicant would need to deal with the

blasting before restarting the turbines.

90. Second, Dr. Missimer examined the work of the Black &

Veatch geotechnical engineer as to the extent of vibrations from

blasting at the PBA Quarry. Explaining that the economics of

blasting necessitates the use of just enough explosive material

to loosen the substance to be mined, Dr. Missimer testified that

the explosive forces dissipate in intensity and magnitude very

quickly from the point of detonation. The maximum depth of the

mining is 60 feet. Agreeing with the Black & Veatch analysis,

Dr. Missimer determined that the force of blasting would be

spent by 10,000 feet, and the nearest blasting will be 14,000

feet from the wells. Dr. Missimer noted that mining typically

is allowed to within 500 feet of public supply wells, which are

not built to the standards of Applicant's injection wells, and

he has not found any documented reports of blasting-induced

damage to such wells.

91. Dr. Missimer testified that the force of the PBA

Quarry blasting would not affect the Middle Floridan Confining

Unit either.

92. Lastly, Petitioners focus on the composition and

volume/pressure of the injected fluids. These are important

matters for two reasons. Excessive pressures or corrosive

elements in the injected fluids could undermine the integrity of

the Middle Floridan Confining Unit at the location of the

injection wells. Also, the injection of hazardous waste, in

addition to violating the Permit, would intensify the

consequence of an upward migration of injected fluids. More

than once, testimony in support of reasonable assurance

justifiably emphasized the common characteristics of the

injected fluids and the native groundwater.

93. Notwithstanding its confidence in the integrity of the

Middle Floridan Confining Unit at the location of IW-1 and IW-2

and the high transmissivity of the Boulder Zone, DEP has

imposed, based on the law, significant restrictions on Applicant

in terms of the injection fluids. In all but two respects,

Petitioner's concerns as to the composition and volume/pressure

of the injected fluids are misplaced because Applicant and the

Permit provide reasonable assurance that the composition and

volume/pressure of the injected fluids will comply with

applicable law and will not cause any injected fluids to migrate

up into the USDW. The two exceptions, for different reasons,

are minor and easily corrected.

94. In general, Petitioners' evidence failed to reveal any

flaws in the analysis of the experts of Applicant that the

pressures in the injection zone will adversely affect the

Boulder Zone. However, one issue concerning volume/pressure

arises due to what appears to be inadvertence in drafting the

Permit.

95. Applicant has applied for approval of two injection

wells because it needs one well to serve as a back-up to the

other well, not to operate both wells simultaneously. The

reliability of the WCEC to produce power is dependent on, among

other things, the ability of Applicant to dispose of vast

volumes of wastewater produced daily by plant operations.

Applicant has not previously predicated the uninterrupted

operation of one of its many power plants on the operation of an

injection well, so it understandably sought the comfort of

redundancy: if one injection well goes out of service, the

other well can be activated, and the plant can continue

operating without interruption.

96. Applicant has proposed an injection well system with a

single-well capacity (although that could be achieved by both

wells operating simultaneously at a combined rate not to exceed

the permitted rate of a single well). Applicant intends for the

proposed injection well system to pump at a rate of 10 feet per

second, not 20 feet per second--or 12 feet per second during

emergencies, not 24 feet per second.

97. The 10/12 feet per second pumping rate is consistent

with the testimony of Applicant's primary expert on this point.

David McNabb, a licensed geologist retained by Applicant,

testified that the Boulder Zone could receive water at the rate

of 10 feet per second or 12 feet per second during emergencies.

Mr. McNabb added that, during the injection test, Applicant

would operate only one well at a time. He also calculated the

zone of endangering influence using the maximum pumping rate of

10 feet per second, not 20 feet per second. Mr. McNabb

specifically confirmed during cross-examination that only one

well would be pumping at a time.

98. However, the Permit implies the injection well system

is approved for 20 feet per second, as did Mr. May's testimony

at one point. The confusion arises for two reasons. First, the

Permit nowhere explicitly sets the maximum rate for the

injection well system or the two injection wells individually.

Second, Permit Specific Condition 5.b.4 states that each well

may be tested at 12 feet per second (which is approved by a DEP

rule cited below) "since, in a multiple well system, this can be

allowed when one of the other injection wells is inoperable due

to planned testing or maintenance." It is in this explanation

that the problem arises. The explanation implies that an

emergency arises when a well requires service and Applicant can

no longer obtain a combined rate of 20 feet per second out of

both wells, so it may then at least obtain 12 feet per second

out of the well that remains operative.

99. The subject injection well system will be a multiple

well system, but with only one well operating at a time (or both

wells operating at the permitted rate of a single well). The

DEP rule, quoted below, allows the increased rate of 12 feet per

second for testing, maintenance, or emergencies. In the system

proposed by Applicant, the servicing of the other well is not an

emergency and does not justify operating the activated well at

12 feet per second. This condition is not an emergency because

Applicant always intended that the other well, and its 10 feet

per second capacity (12 feet per second in an emergency) serve

in a backup capacity.

100. This is a minor problem that is easily corrected by

adding language to the Permit specifying that the maximum rate

of pumping is 10 feet per second (12 feet in an emergency)

whether one or both injections are pumping at any given time and

the unavailability of one of the wells is not an emergency that

would allow pumping at the rate of 12 feet per second.

101. The other issue concerning the composition of the

wastewater is more substantial theoretically, but not

practically on the facts of these cases. This issue involves

how Applicant is to determine that the wastewater disposed into

the injection wells is free of hazardous waste.

102. Except as to hazardous waste, there is no issue as to

the composition of the injected fluids or wastewater. Applicant

will strive to maintain neutrality in the recycled cooling and

process waters to avoid damage to the plant equipment. Too

acidic, the water will induce corrosion. Too base, the water

will induce scaling. Dr. Missimer testified that the injecting

fluid would likely be neutral and not affect the formations into

which it comes into contact. Applicant intends to use

descalers, which are necessarily acidic, but Dr. Missimer

testified that, in the unlikely event that somewhat more acidic

water were injected into the Boulder Zone, the predominantly

dolomitic Middle Floridan Confining Unit and Boulder Zone would

withstand acidity better than would the limestone that prevails

at subsurface higher elevations.

103. Nor is the problem here an omission of the

prohibition against injecting hazardous waste. Unlike the

situation with the maximum pumping rate, the Permit addresses

hazardous waste and flatly prohibits its injection into the

injection wells. The problem is whether this prohibition, even

if coupled with Applicant's succinct description in Attachment G

of its approach to hazardous-waste determinations, provides

reasonable assurance that this provision of the Permit will

work. If reasonable assurance were satisfied by a mere

restatement of the requirements of law, this Permit could have

been shortened to: "Applicant may inject wastewater pursuant to

law." Or, perhaps a little more generously, the Permit could be

reduced to a minor restatement of Specific Condition 1.d:

"Pursuant to law, Applicant may inject wastewater, but not so

that it causes or allows the movement of fluid into an USDW."

104. Essentially, the Permit addresses hazardous wastes by

prohibiting them. The lone provision in the Permit concerning

hazardous waste is Specific Condition 6.a.9, which states

bravely: "The injectate shall be non-hazardous in nature at all

times . . .."

105. The incorporation of Attachment G into the Permit

would provide reasonable assurance of actual testing of the

chemical cleaning residue and probably of the cooling system

water and leak-tracing dyes, which is based on vendors'

representations, but would not provide any assurance as to the

other wastestreams. Process knowledge of sanitary wastewater

treatment, if based on Applicant's knowledge, means little given

the fact that Applicant is a power company. For the remaining

wastestreams, unidentified analysis of undisclosed "historical

data" means nothing and, thus, provides no assurance whatsoever.

106. For all of these wastestreams, including the chemical

cleaning wastestream, reasonable assurance requires a plan for

periodically obtaining reliable data and conducting valid

analysis, or obtaining such data and analysis from other parties

such as reliable vendors or governmental agencies; the

implementation of such a plan; and the documentation of the

implementation, including the recordation of the data sources

relied on, the analytic processes undertaken and by whom, the

resulting determination as to whether a discrete wastestream is

a hazardous waste, and the manner of disposition of any such

hazardous waste.

107. The procedures described in the preceding paragraph

provide reasonable assurance because, although consistent with

DEP's evident reliance on permittees to self-police as to

hazardous wastes, they supply reasonably broad guidelines for

how permittees are to discharge their hazardous-waste

responsibilities, thus improving the likelihood of effective

compliance, and some reasonable basis for enforcement, in the

event of noncompliance. At present, the Permit's treatment of

hazardous wastes leaves Applicant largely on its own and little,

if any, opportunity for effective monitoring and enforcement by

DEP, given that the wastewater, once injected, is 3000 feet

under the surface of the earth where, under the facts of these

cases, it will remain for geologic time.

108. For several reasons, the deficiencies in the Permit

concerning hazardous waste appear more consequential than they

are in reality, based on the present record. First, the source

water for the WCEC is not likely to produce hazardous waste.

The Upper Floridan Aquifer contains only one substance that is

on the hazardous waste list, as it is presently constituted, and

the substance does not approach the concentration required for

listing. The L-10/L-12 canal contains several listed

substances, but, as Dr. Missimer pointed out, the

concentrations, even after five cycles through the plant, are

several orders of magnitude below the concentrations that are

necessary for listing. Although the composition of the canal

water, which drains Lake Okeechobee, is far more variable than

the composition of the Upper Floridan Aquifer, neither source

presents a real risk of introducing hazardous waste into the

wastestream to be injected into the Boulder Zone. Additionally,

the Permit already requires extensive water-quality testing of

the wastewater, although not as extensive as would be necessary

to rule out, on the basis of laboratory testing alone, the

presence of any hazardous waste in the wastewater.

109. Second, Applicant does have considerable knowledge,

if not of sanitary wastewater treatment processes, of the

process involved in the production of energy. For those

relatively few components that come into direct contact with

cooling or process water, reasonable assurance as to hazardous

wastes does not require much from Applicant. Initially and when

introducing new equipment that comes into contact with the

wastestream, Applicant may easily document, based on vendors'

representations, that the substances contributed from these

components into the wastewater are not listed or, if listed, are

not contributed at rates approaching the listed concentrations.

For wastewater from the package plant, Applicant may undertake

the same process, again relying on the expertise of vendors or

other parties, unless Applicant can demonstrate expertise in

sanitary wastewater that it has not demonstrated in this record.

110. Third, the volume of water to be disposed of daily is

vast. Aside from the depth of the wells and the difficult-to-

conceive vastness of the Lower Florida Aquifer, the fact that

best describes the scale of this project is the vertical height

of the injecting zone, which will be at least 200 feet high, or

the height of a 20-story building. From this scale, one can

infer the scale of the amount of wastewater that Applicant will

be disposing of daily. This is not to suggest that a little

hazardous waste is not especially important given the vastness

of scale of this project. Rather, it is to acknowledge that it

is extremely unlikely that these high volumes of wastewater, at

the moment of entry into the injection well, would ever contain

a hazardous waste due to the fact that the characteristic

wastes, listed for toxicity, are expressed in concentrations,

although the wastes may reach listed concentrations at early

points, such as in the boiler immediately after chemical

cleaning or in the package plant.

111. For these three reasons, the failure of the Permit to

provide reasonable assurance as to hazardous wastes is a minor

deficiency, more of theoretical than actual importance, and is

easily remedied by a few Permit additions, whose phrasing is

properly left to the discretion of DEP.

CONCLUSIONS OF LAW

112. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2007).

113. For standing, Petitioners must show that they have

suffered an injury in fact of sufficient immediacy to entitle

them to a Section 120.57(1) hearing and that their substantial

injury is of a type or nature that the proceeding was designed

to protect. Agrico v. Department of Environmental Regulation ,

406 So. 2d 478, 482 (Fla. 2nd DCA 1981). For an association,

Petitioner Coalition must demonstrate that a substantial number

of its members would have standing. Friends of Everglades, Inc.

v. Board of Trustees of the Internal Improvement Trust Fund , 595

So. 2d 186, 188 (Fla. 1st DCA 1992).

114. In hindsight, based on the review of a complete

evidentiary record, the only petitioner who adequately pleaded

standing was Petitioner Larson. As contrasted to the sale of

conservation land used recreationally by environmentally minded

association members, Friends of Everglades , supra , the present

cases involve permitted activities 3000 feet beneath the surface

of earth. Even if the Middle Floridan Confining Unit were to

fail to retain the injected fluids, the impact would be to the

Upper Floridan Aquifer, which is itself hundreds of feet below

the surface of the earth. Water quality of this aquifer would

suffer, but it is impossible to trace, from this effect, any

impact at all on the National Wildlife Refuge or the users of

this natural resource. In the event of upward migration of

injected fluids to the Upper Floridan Aquifer or even the

surficial aquifer, the groundwater impacts to the National

Wildlife Refuge would be negligible, at most. If upward

migration were limited to the Upper Floridan Aquifer, the water

quality within the National Wildlife Refuge would also remain

unaffected. If upward migration were extended to the surficial

aquifer, given the extensive period of time involved, the water

quality within the National Wildlife Refuge would likely remain

unaffected. Therefore, claims of standing based on such impacts

and the use of this unique natural resource must necessarily

fail the first prong of the two-pronged Agrico test. But see

Calcasieu League for Environmental Action Now v. Thompson , 661

So. 2d 143 (La. 1st Cir.), cert. denied , 664 So. 2d 459 (La.

1995).

115. The only petitioner offering an alternative basis for

standing is Petitioner Larson, who claims a substantial injury-

in-fact from the effect of such upward migration on her potable

water well in the surficial aquifer. Clearly, as Applicant

concedes in its proposed recommended order, her claim satisfies

the second prong of the Agrico test, as the permitting regime at

issue in these cases is designed to protect groundwater quality,

in particular USDWs, of which the surficial aquifer is one. The

question is whether Petitioner Larson can satisfy the first

prong of the Agrico test.

116. Petitioner Larson adequately pleaded standing under

the first prong of the Agrico test. Her pleadings claim

deficiencies in the proposed construction and operational

testing of IW-1 and IW-2 that would injure her in fact. South

Florida Water Management District v. St. Cloud , 550 So. 2d 551

(Fla. 5th DCA 1989). But Petitioner Larson has not proved

standing. The two demonstrated deficiencies in the Permit do

not go toward the integrity of the Middle Floridan Confining

Unit, but toward the permissible operating conditions of IW-1

and IW-2 and the permissible composition of the injected fluids

into the Boulder Zone. The issue involving the maximum

permitted well pressure could go to the integrity of the Middle

Floridan Confining Unit and the accuracy of the zone of

endangering influence. But the small amount of additional

pressure, the vastness of the Boulder Zone, the thickness of the

Middle Floridan Confining Unit, the lack of another well into

the Boulder Zone and that might require corrective action within

miles of the WCEC, and the presence of another confining unit

between the Middle Floridan and Petitioner Larson's well

preclude the possibility that Petitioner Larson has proved any

injury in fact.

117. However, the remaining conclusions of law are

appropriate for two reasons. First, as required by Florida

Administrative Code Rule 62-110.106(7)(d), the Intent to Issue

Notice warns parties, including Applicant, that "[b]ecause the

administrative hearing process is designed to formulate agency

action, the filing of a petition means that the Department final

action may be different from the position taken by it in this

notice." Cf . Beverly Enterprises-Florida, Inc. v. Department of

Health and Rehabilitative Services , 573 So. 2d 19, 23 (Fla. 1st

DCA 1990); Hopwood v. Department of Environmental Regulation ,

402 So. 2d 1296 (Fla. 1st DCA 1981). But cf . St. Joe Paper Co.

v. Department of Community Affairs , 657 So. 2d 27 (Fla. 1st DCA

1995), rev. denied , 667 So. 2d 774 (Fla. 1996).

118. In its proposed recommended order, DEP misapplies to

these cases the Agrico mandate that, after a judicial

determination that permit challengers lack standing, the agency

must issue the permit. This is true after judicial review, but

not here, where DEP has yet to enter a final order and issue the

Permit. At this relatively early stage in the permitting

process, the authority cited in the previous paragraph still

applies. 10

119. Second, subsequent review may determine that one or

more petitioners have standing. Given the fact that the parties

have already participated in a full evidentiary hearing, the

issuance of findings of fact and conclusions of law on all

issues would serve administrative efficiency and likely render

any erroneous standing determinations harmless error. Gregory

v. Indian River County , 610 So. 2d 547, 554-55 (Fla. 1st DCA

1992); First Hospital Corporation v. Department of Health and

Rehabilitative Services , 589 So. 2d 310, 313 (Fla. 1st DCA

1991).

120. Pursuant to 42 U.S.C. § 300h-1(a), the United States

Environmental Protection Agency has authorized Florida to

administer an underground injection control program. 40 C.F.R.

§ 147.500. This program is described in Florida Administrative

Code Chapter 62-528. Section 403.061(7), Florida Statutes,

authorizes DEP to adopt rules consistent with this federal law.

121. Florida Administrative Code Rule 62-528.100(1)

provides:

The purpose of Chapter 62-528, F.A.C.,

Underground Injection Control (UIC), is to

protect the quality of the State’s

underground sources of drinking water and to

prevent degradation of the quality of other

aquifers adjacent to the injection zone that

may be used for other purposes. This

purpose is achieved through rules that

govern the construction and operation of

injection wells in such a way that the

injected fluid remains in the injection

zone, and that unapproved interchange of

water between aquifers is prohibited.

122. Florida Administrative Code Rule 62-528.110(2)

states:

It is the intent of this chapter that the

injection of wastes underground shall not

adversely interfere with any designated use

of ground water as specified in subsection

62-520.410(1), F.A.C., or cause violations

of water quality standards in underground

sources of drinking water.

123. Florida Administrative Code Rule 62-528.300(1)(a)2

identifies as a Class I injection well any "industrial and

municipal . . . disposal wells which inject fluids beneath the

lowermost formation containing, within one quarter mile of the

well bore, an underground source of drinking water."

124. Florida Administrative Code Rule 62-528.300(2)

provides that DEP shall identify as a USDW any part of an

aquifer meeting the requirements of Florida Administrative Code

Rule 62-528.200(66). This rule defines such an aquifer as one

actually providing drinking water or one containing a TDS

concentration of less than 10,000 mg/L.

125. Florida Administrative Code Rule 62-528.300(4) and

(5) requires an applicant for a Class I injection well permit to

take "corrective action" on wells that penetrate the injection

zone within the "Area of Review," which is the land surface

overlying the "zone of endangering influence." As defined by

Rule 62-528.300(4)(a), this zone is the "lateral area in which

the buoyant forces or increased pressures in the injection zone

may cause the migration of the injected or formation fluid into

an underground source of drinking water." Pursuant to Rule

62-528.300(4)(b), the Area of Review must encompass at least a

one-mile radius around the injection well. Rule 62-528.300(5)

provides that the corrective action is to ensure that the

applicant takes such measures, with respect to any wells

penetrating the injection zone within the Area of Review, to

"prevent fluid movement into [a USDW]."

126. Florida Administrative Code Rule 62-528.300(6)(a)

states that an injection well exhibits "mechanical integrity" if

there is "no leak in the casing, tubing, or packer" and "no

fluid movement into a. . . [USDW] through channels adjacent to

the injection well bore." Rule 62-528.300(6)(b) requires

Applicant to monitor the tubing-casing annulus pressure or

pressure test the inner casing or tubing to demonstrate that the

injection well has no leak in the casing, tubing, or packer.

Rule 62-528.300(6)(c) requires Applicant to use a temperature or

noise log and, if not a threat to a USDW, a radioactive tracer

survey to demonstrate that there is no fluid movement into an

USDW through channels adjacent to the injection well bore.

127. Florida Administrative Code Rule 62-528.315 requires

DEP to give the public notice of Class I permits. Florida

Administrative Code Rule 62-528.325 requires DEP to hold a

public meeting whenever a proposed permit has a significant

degree of public interest. Florida Administrative Code Rule 62-

528.330 requires DEP to respond to public comments. Florida

Administrative Code Rule 62-528.335 requires DEP to prepare a

fact sheet on a proposed permit when it is the subject of

widespread public interest or raises major issues.

128. Florida Administrative Code Rule 62-528.360 prohibits

the injection of "hazardous waste" through any well, except as

provided in Rule 62-528.400. As applicable to these cases,

Florida Administrative Code Rule 62-528.400(1) flatly prohibits

the injection of "hazardous waste." Florida Administrative Code

Rule 62-528.200(35) incorporates the definition of "hazardous

waste" found in Florida Administrative Code Rule 62-730.030,

which, in turn, incorporates the provisions of 40 C.F.R. Part

261 (2006), with certain revisions.

129. Florida Administrative Code Rule 62-528.405(1)(a)

requires Applicant to demonstrate that, pursuant to Rule

62-528.440(2)(c), the:

hydrogeologic environment is suitable for

waste injection . . .. Suitability means

that the injection will not "cause. . . or

allow. . . movement of fluid into [USDWs],

if such fluid movement may cause a violation

of any primary drinking water standard under

40 C.F.R. 141 (1994), or may otherwise

adversely affect the health of persons.

130. Florida Administrative Code Rule 62-528.405(1)(a)

also requires Applicant to demonstrate that waste injection will

not "modify. . . the ambient water quality of other aquifers

overlying the injection zone."

131. Addressing the confining zone, Florida Administrative

Code Rule 62-528.405(2)(a) requires Applicant to show that the

confining zone(s) above the injection zone have "sufficient

areal extent, thickness, lithologic and hydraulic

characteristics to prevent fluid migration into [USDWs]." Rule

62-528.405(2)(c) requires Applicant to propose methodology for

testing the confining zone and provide sufficient data, such as

geophysical logs, lithologic cores, and water samples, to prove

the confining characteristics of the confining zone. This rule

also requires a "monitoring system" to include "one or more on-

site monitoring well(s), designed to confirm the long-term

effectiveness of the confining zone."

132. Addressing the injecting zone, Florida Administrative

Code Rule 62-528.405(3)(a) requires Applicant to demonstrate

that the proposed injection zone has "sufficient extent,

thickness, lithologic and hydraulic characteristics to

adequately receive waste." Rule 62-528.405(3)(b) adds that the

applicant must propose a sufficient methodology for testing the

injection zone's capacity for receiving injecting fluid:

The applicant shall demonstrate the

suitability of a proposed zone by

determining the hydraulic characteristics,

lithology, thickness, extent, and

compatibility of injection and formation

fluids. Testing of the injection zone shall

include a pumping injection test at a flow

rate of not less than the maximum design

capacity of the well, and of such duration

that can demonstrate the trend of the

injection pressure on the long-term

operating conditions.

133. Addressing the construction of a Class 1 well,

Florida Administrative Code Rule 62-528.410 provides:

(1) General Design Considerations.

(a) All Class I and III wells shall be

cased and cemented to prevent the movement

of fluids into or between underground

sources of drinking water, and to maintain

the ground water quality in aquifers above

the injection zone that may be used for

monitoring or other purposes.

(b) All Class I wells shall be designed

and constructed so that they inject into a

formation which is beneath the lowermost

formation containing, within one quarter

mile of the well bore, an underground source

of drinking water.

(c) In the design specifications for a

Class I well, the applicant shall address

the problem of corrosion, proposed

protective measure(s), and, when

appropriate, proposed methods of monitoring.

The applicant shall consider thickness and

type of cement, number and thickness of

casings, casing material, casing coatings,

formation fluid (water) quality, injection

fluid quality and life expectancy of the

well.

(d) For Class I wells all outer surfaces

of uncemented casings or portions of casings

shall be coated or otherwise protected

against corrosion. This protection shall

extend for a minimum distance of thirty feet

above and below the uncemented portion of

the casing.

(e) All Class I injection wells, except

those municipal wells (publicly or privately

owned) injecting noncorrosive wastes, shall

inject fluids through tubing with a packer

set immediately above the injection zone, or

tubing with an approved fluid seal as an

alternative. . . .

* * *

134. Florida Administrative Code Rule 62-528.410(2)

requires an exploratory pilot hole for any Class I well. Rule

62-528.410(3) requires a step-by-step drilling plan for Class I

wells. Rule 62-528.410(4) requires that the casings for each

Class I be designed for the life expectancy of the well. This

rule requires that the final length of casing be made of

seamless steel pipe with at least a 1/2-inch wall thickness.

135. Florida Administrative Code Rule 62-528.410(5)(a)

requires that the cement used in the construction of the well be

designed for the life expectancy of the well and must be

compatible with injection fluids, native fluids, and the

formation, but in no case shall be less than ASTM Type 2 or its

equivalent. Rule 62-528.410(5)(g)1 requires that a temperature

survey be run within 48 hours after cementing.

136. Florida Administrative Code Rule 62-528.410(6)(a)1

requires deviation checks during drilling to avoid misalignment

that might create a vertical channel for the upward migration of

fluids from the injection zone.

137. Florida Administrative Code Rule 62-528.410(7)

specifies the testing that must take place upon completion of

construction of a Class I well. These tests include a cement

evaluation survey, temperature survey, pressure test of the

final casing, video survey from top to bottom of the well,

injection tests, withdrawal tests, and a radioactive tracer

survey.

138. Addressing the operating requirements for Class I

wells, Florida Administrative Code Rule 62-528.415 prohibits

such injection pressure that would initiate new fractures or

extend existing fractures in the injection zone, initiate

fractures in the confining zone, significantly alter the fluid-

containment capabilities of the confining zone, or cause the

movement of injection or formation fluids into an USDW or

monitoring zone.

139. Florida Administrative Code Rule 62-528.415(1)(f)

restricts the peak hourly flow of the injection well to ten feet

per second, unless the applicant demonstrates that higher

velocities would not compromise the integrity of the well.

However, an injection system may be designed to allow 12 feet

per second during testing, maintenance, or emergency conditions.

140. Florida Administrative Code Rule 62-528.415(3)

requires operation and maintenance manuals, which is subject to

DEP approval under Florida Administrative Code Rule 62-4.240.

141. Addressing monitoring requirements for Class I wells,

Florida Administrative Code Rule 62-528.425(1)(a) requires the

"analysis of the injected fluids at a frequency specified in the

permit to yield representative data on their characteristics."

Rule 62-528.425(1)(b) requires the continuous and recorded

monitoring of flow rate, flow volume, injection pressure, and

pressure on the annulus between the tubing and final casing.

Rule 62-528.425(1)(f) requires the determination of the

background water quality of the injection zone and monitoring

zone prior to injection.

142. Florida Administrative Code Rule 62-528.425(1)(g)

requires that monitoring wells allow the monitoring of the

absence of fluid movement adjacent to the well bore and the

long-term effectiveness of the confining zone. Rule

62-528.425(1)(g)3 requires that monitoring wells be located

within 150 feet of the injection well. Rule 62-528.425(1)(g)4

requires the monitoring of a zone below the base of the USDW and

at least one zone within, and near the base of, the USDW.

Rule 62-528.425(1)(g)5 provides that, if needed for reasonable

assurance of the monitoring, DEP shall require continuous

monitoring for pressure changes in the first aquifer overlying

the confining zone, continuous monitoring for pressure changes

in any monitoring well, periodic monitoring of groundwater

quality in the first aquifer overlying the injection zone,

periodic monitoring of groundwater quality in the lowermost

USDW, and periodic additional monitoring to determine whether

fluid movement caused by injection activity is occurring into or

between USDWs.

143. Addressing the information that an applicant must

provide DEP with its application for a permit for construction

and operational testing, Florida Administrative Code Rule

62-528.450(2)(f)3 requires the identification of the "source and

an analysis of the chemical, physical, radiological and

biological characteristics of injection fluids . . .." This

rule adds:

For Class I wells injecting domestic

effluent, a demonstration that the effluent

quality meets the standards specified in

subparagraph 62-600.420(1)(d)1 and Rule

62-600.540, F.A.C.; or for new wells, the

minimum treatment requirements set forth in

40 C.F.R. §§ 146.15 and 146.16, . . . hereby

adopted and incorporated by reference. For

all other Class I wells, a demonstration

that the effluent quality meets the

standards specified in paragraph

62-660.400(1)(o), F.A.C.

144. Addressing operational testing of Class I wells,

Florida Administrative Code Rule 62-528.450(3) imposes

requirements on an applicant seeking DEP approval to commence

operational testing. In general, the rule requires a "period of

temporary injection operation for the purposes of long term

testing." The rule requires, prior to commencement of

operational testing, that the applicant complete the

construction and testing of the injection well, the submittal of

various types of information, including "wastestream analysis,"

and the consideration by DEP of the "compatibility of injected

waste with fluids in the injection zone and minerals in both the

injection zone and the confining zone[.]" Rule 62-528.450(3)(e)

restricts the duration of operational testing periods for Class

I wells to two years.

145. Applicant has the burden of proving that it has

provided the necessary reasonable assurance. Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981). With two minor exceptions, Applicant has met its

burden, and DEP should issue the Permit. DEP may easily revise

the Permit to address these two flaws and may make these

revisions at this stage of the proceeding, consistent with the

holding in Hopwood , supra .

146. The legal bases for requiring a statement in the

Permit concerning maximum well injection rates are set forth

above. As stated in the findings of fact, the assurances based

on the zone of endangering influences and impact of the injected

fluids on the injection zone require identification of the rate

of injection, and these were all based on 10 feet per second or

12 feet per second in an emergency.

147. The legal bases for requiring more elaborate

treatment of hazardous waste in the Permit include authority in

addition to that set forth above. In general, 40 C.F.R.

§ 261.3(a)(2) recognizes two broad categories of hazardous

wastes: "listed" and "characteristic." A "listed" waste is one

that "is listed in Subpart D of this part and has not been

excluded from the lists in Subpart D of this part under Sec.

Sec. 260.20 and 260.22 of this chapter." 40 C.F.R.

§ 261.3(a)(2)(ii).

148. Listed wastes are at 40 C.F.R. §§ 261.31, 261.32, and

261.33. It does not appear that any of the wastes of a power

plant will qualify as listed hazardous wastes.

149. A "characteristic" waste is one that "exhibits any of

the characteristics of hazardous waste identified in subpart C

of this part." 40 C.F.R. § 261.3(1)(2)(i). The characteristics

are "ignitability," "corrosivity," "reactivity," and "toxicity."

40 C.F.R. §§ 261.21, 261.22, 261.23, and 261.24.

150. The only characteristic waste that appears relevant

is toxicity. The enumerated wastes that qualify as hazardous

are listed at 40 C.F.R. §261.24, Table 1. The only items on the

list that are reported in the water of the L-10/L-12 canal or

the Upper Floridan Aquifer, with the qualifying concentrations

in parentheses, are arsenic (5.0 mg/L), barium (100 mg/L),

cadmium (1 mg/L), chromium (5.0 mg/L), lead (5 mg/L), mercury

(0.2 mg/L), selenium (1.0 mg/L), and silver (5 mg/L). The only

one of these items found in the Upper Floridan Aquifer is

barium; the rest are found exclusively in the canal water.

151. At hearing, the parties claimed that Applicant may

apply "process knowledge" to determine if a substance is

hazardous, but this means is not within the part of the Code of

Federal Regulations that DEP has incorporated into Florida law.

Pursuant to 40 C.F.R. § 262.11(c)(1), Applicant could use

testing, as provided in 40 C.F.R. Part 261, or process

knowledge, which is "[a]pplying knowledge of the hazard

characteristic of the waste in light of the materials or

processes used". Interestingly, the provisions for testing are

in 40 C.F.R. Part 261, but the provision for "process knowledge"

is in 40 C.F.R. Part 262. As noted above, Florida

Administrative Code Rule 62-730.030 incorporates 40 C.F.R. Part

261, but not 40 C.F.R. Part 262. 11

152. The failure of DEP to adopt by rule process knowledge

as a means of proving that a substance is not a hazardous waste

is significant only in that Applicant may not simply rely on a

rule authorizing the use of process knowledge. Applicant may

still provide reasonable assurance as to hazardous waste by any

effective means that it chooses, including process knowledge,

but, absent a rule, it may have to justify the process by which

it acquired the knowledge that a particular material or process

does not contain or generate hazardous waste. This is not an

inordinate burden. Similarly, 40 C.F.R. § 262.11 imposes the

burden on the person who generates a solid waste, which may

include a wastestream, to determine if the waste is a hazardous

waste.

153. The point reduces to a matter of proof of reasonable

assurance. In Florida, when it comes to hazardous waste, saying

that something is a hazardous waste does not necessarily make it

so. Kerper v. Department of Environmental Protection , 894 So.

2d 1006, (Fla. 5th DCA 2005) (court declined to sustain

determination of hazardous waste based exclusively on testimony

of DEP expert, who testified that liquid "felt like used oil").

And, presumably, saying something is not hazardous waste does

not necessarily make it not hazardous waste.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental Protection

enter a final order issuing Permit No. 247895-007-UC or issuing

Permit No. 247895-007-UC with the recommended revisions.

DONE AND ENTERED this 3rd day of March, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of March, 2008.

ENDNOTES

1 The Order Closing Files states that the Administrative Law

Judge is relinquishing jurisdiction over Permit No.

247895-006-UC, which, as noted below, is the proposed permit for

DZMW-1. The Order Closing Files notes that the ruling does not

affect DOAH Case Nos. 07-5047, 07-5062, and 07-5063, "which

challenge Permit No. 247895-007-UC." As noted above, this is

the permit for IW-1 and IW-2.

The amended petition of each petitioner challenged "the

permit" for IW-1, IW-2, and DZMW[-1]. On November 28, 2007,

Petitioner Christensen filed a Motion for Rehearing, which asked

for an Order reinstating his challenge to DZMW[-1]. By Order

Denying Motion for Rehearing entered November 30, 2007, the

Administrative Law Judge denied the motion. The Order states

that the only timely filed petition to Permit No. 247895-006-UC

was filed by the petitioner in DOAH Case Nos. 07-3881 and

07-4744. It appears from the pleadings that DEP issued proposed

Permit No. 247895-006-UC substantially prior to issuing proposed

Permit No. 247895-007-UC and that the petitions that commenced

DOAH Case Nos. 07-5047, 07-5062, and 07-5063 were untimely as to

the earlier-issued proposed permit.

2 FPL Exhibit No. 16, Attachment P reports the packer test data

by test number, not depth. FPL Exhibit No. 16, Table 6 reports

the depths of each of five packer tests. The Administrative Law

Judge has inferred, especially due to the low TDS reported for

the first packer test, that the tests are listed in Attachment P

from shallowest to deepest.

3 Specifically, .00000074 cm/second at 1956 feet, .0000036

cm/second at 1960 feet, and .00000091 cm/second at 1962 feet.

4 Specifically, .0016 cm/second at 2048 feet, .0000000084

cm/second at 2062 feet, and .000000094 cm/second at 2065 feet.

5 Specifically, .0000039 cm/second at 2193 feet and .00017

cm/second at 2200 feet.

6 Specifically, .000000054 cm/second at 2828 feet.

7 40 C.F.R. §§ 146.15 and 146.16 are inapplicable to this

Permit because they pertain exclusively to municipal injection

wells, not industrial injection wells. Pursuant to Florida

Administrative Code Rules 62-528.200(45) 62-528.300(1)(a)2, a

municipal injection well may be privately owned, but, under Rule

62-528.200(45), a municipal injection well injects "fluids that

have passed through the head of a permitted domestic wastewater

treatment facility and received at least secondary treatment

pursuant to Rule 62-600.420."

Judging from the facts that DEP and Applicant have treated the

proposed injection wells an industrial disposal wells, not

municipal disposal wells, and that both parties knew from

Application, Attachment G of the intent to dispose of sanitary

wastewater through the injection wells, the small amount of

treated sanitary wastewater that Applicant will dispose of

through IW-1 and IW-2 is not sufficient to convert these

industrial wells into municipal wells.

Additionally, §§ 146.15 applies only to existing municipal

injection wells, and 146.16 seems to apply only to existing

municipal injection wells.

8 Although another key point in the article is to analyze the

likely composition of the fluid that migrates through the

confining unit and into the Upper Floridan Aquifer. In the

article, Dr. Missimer notes that pathogenic microorganisms in

injected wastewater are not detectable after two or three years,

so, even where vertical migration was most rapid, these

microorganisms would be inactivated before they reached the

USDW, although the deactivation rates, and rate of absorption

into aquifer and confining rock, of endocrine disrupting

compounds and pharmaceuticals vary. In fact, at the hearing,

Dr. Missimer noted that he originally tried to define the plume

as "components of the plume"--i.e., freshening and "minor

components" like ammonium--but editors required a unitary

treatment of the plume, without differentiation among

components.

9 Petitioners contend only that the mine blasting may damage

the well, such as the interface between the casing and the

formation wall. They do not contend, nor would the record in

any way support, that the mine blasting may be of such force as

to fracture the Middle Floridian Confining Unit.

10 For these cases, the more apt message from Agrico may be the

court's next statement, after the above-noted mandate to the

Department of Environmental Regulation: "We note that Agrico's

sulphur-handling facility, when and if constructed, will then be

subject to rigorous testing before the operational permit can be

issued." Agrico , 406 So. 2d at 482. As in Agrico , the issue in

the present cases is for a permit for operational testing, with

a maximum term of two years, not operation.

11 The only mention of "process knowledge" or any combination

of these words with "hazardous" in DEP's rules is Florida

Administrative Code Rule 62-740.040(2) and (5) (producer may use

process knowledge to determine whether petroleum contact water

is a hazardous waste).

COPIES FURNISHED:

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Peter Cocotos, Esquire

Florida Power & Light Company

700 Universe Boulevard

West Palm Beach, Florida 33408

Michael Christensen

13759 159th Street North

Jupiter, Florida 33478

Barry M. Silver, Esquire

1200 South Rogers Circle, Suite 8

Boca Raton, Florida 33487

Cynthia K. Christen, Esquire

Ronald W. Hoenstine, III, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Alexandria Larson

16933 West Harlena Drive

Loxahatchee, Florida 33470

Eric T. Olsen, Esquire

Paula L. Cobb, Esquire

Gary V. Perko, Esquire

Hopping, Green, Sams & Smith

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in these cases.