10-003351 Henry Ross vs. City Of Tarpon Springs And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, December 16, 2010.

Summary: Petitioner failed to prove his substantial interests would be affected by the industrial wastewater facility permit. The City provided reasonable assurance it would meet all criteria applicable to its proposed discharge of demineralization concentrate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY ROSS , )

)

Petitioner , )

)

vs. ) Case No. 10 - 3351

)

CITY OF TARPON SPRINGS AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondents . )

)

RECOMMENDED ORDER

The final hearing in this case was held on September 13 and

14, 2010, in Tarpon Springs, Florida, before Bram D. E. Canter,

Administrative Law Judge of the Division of Administrative

Hearings ("DOAH").

APPEARANCES

For Petitioner: H enry Ross, pro se

1020 South Florida Avenue

Tarpon Springs, Florida 34689

For Respondent City of Tarpon Springs:

Thomas Jask, Esquire

Frazer, Hubbard, Brandt,

Trask & Yacavone, LLP

595 Main Street

D unedin, Florida 34698

For Respondent Department of Environmental Protection:

Nona R. Schaffner, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the City

of Tarpon Springs (ÐCityÑ) is entitled to a industrial

wastewater facility permit for its proposed discharge of

demineralization concentrate into the Gulf of Mexico adjacent to

Pasco County, Florida.

PRELIMINARY STATEMENT

On March 26, 2010, the Department of Environmental

Protection ("Department") gave notice of its intent to issue an

industrial wastewater facility permit to the City to discharge

demineralization con centrate that would be produced by a new

City water treatment plant ("WTP"). Petitioner, Henry Ross

(ÐRossÑ), filed a petition for hearing to challenge the permit.

The Department referred the matter to DOAH to conduct an

evidentiary hearing.

Ross reques ted and was granted leave to amend his petition.

Before the final hearing, Ross moved to disqualify the City's

attorney. The motion was denied for lack of good cause. At the

beginning of the final hearing , Ross moved to disqualify the

Administrative Law Judge ("ALJ"). That motion was also denied

because Ross failed to allege facts constituting good cause for

the ALJ's disqualification. Ross moved for disqualification of

the ALJ two more times during the course of the final hearing

and each time his mot ion was denied for lack of good cause.

At the final hearing, the City presented the testimony of:

Paul E. Smith; Bob Robertson; and C. Robert Reiss, accepted as

an expert in reverse osmosis (" RO ") water treatment and

demineralization concentrate discharg e. City Exhibits 1 through

18, 20 through 22, 27, 30, and 31 were received into evidence.

The Department presented the testimony of: Christopher

Anastasiou, accepted as an expert marine science and

oceanography; Jeffry S. Greenwell, accepted as an exper t in

environmental engineering; and Jan Mandrup - Poulsen, accepted as

an expert in water quality assessments and mixing zones.

Department Exhibits 1 through 42 were received into evidence.

Petitioner presented the testimony of: Joseph R. McCreary,

Jr.; Mi chael T. Palmer; and Ann Ney, accepted as an expert in

marine ecology. Petitioner offered no exhibits during the final

hearing, but was allowed to file Petitioner Exhibit One

( excerpts from the fourth edition of ÐOceanography Î an

Invitation to Marine Sci enceÑ by Tom Garrison) after the

hearing, and it was admitted into evidence.

The four - volume Transcript of the final hearing was filed

with DOAH. The parties filed proposed recommended orders that

were carefully considered in the preparation of this Rec ommended

Order.

FINDINGS OF FACT

The Parties

1. Henry Ross is a resident of Tarpon Springs. In his

petition for hearing, he alleges that he is a recreational

fisherman and a " consumer of fish taken from the area " where the

proposed wastewater discharge would occur. He presented no

evidence at the final hearing to prove these allegations.

Neither the City or the Department stipulated to facts that

would establish Ross's standing.

2. The City of Tarpon Springs is a municipality in

Pinellas County and t he applicant for the industrial wastewater

permit that is challenged by Ross.

3. The Department is the agency charged by law with the

duty , and granted the power , to regulate the discharge of

pollutants into waters of the State.

The Proposed Permit - Gen eral

4. Due to the cost of obtain ing potable water from

Pinellas County Utilities, the City decided to look for another

source of drinking water. In February 2004, an alternative

water supply plan was developed by the CityÓs Office of Public

Services wh ich analyzed potable water supply options. It

determined that the withdrawal and treatment of brackish

groundwater represented the best option for the City.

5. The proposed permit authorizes the City to discharge

industrial wastewater into waters of the State. The wastewater

is demineralization concentrate, which is produced when RO

technology is used to remove salts from brackish water to

convert it to potable water .

6. The wastewater would be produced in conjunction with

the operation of a not - yet - c onstructed WTP that would supply

public drinking water to the residents of the City. The City

must also obtain a consumptive use permit from the Southwest

Florida Water Management District for the proposed withdrawal of

groundwater. Whether the Town is e ntitled to a consumptive use

permit is not at issue in this proceeding.

7. The industrial wastewater permit would authorize a

maximum daily discharge of 2.79 million gallons per day ("mgd")

of RO concentrate. The initial operation of the WTP, however,

i s expected to discharge 1.05 mgd.

8. The RO concentrate would be transported via a force

main from the WTP in the City to an outfall in Pasco County.

The outfall would discharge the wastewater into a canal which is

already being used for the discharge o f cooling water from

Progress Energy Florida, Inc.Ós Anclote Power Generation

Facility.

9. The outfall would be 50 feet north of the point in the

canal where Progress Energy is required to demonstrate

compliance with its own permitting requirements, so a s not to

interfere with Progress Energy's ability to demonstrate

compliance.

10. There is a floating barrier in the channel north of

the proposed point of discharge, and a fence along the side of

the canal, to prevent swimmers, boaters, and persons on fo ot

from getting near the Progress Energy power plant. The floating

barrier and fence would also prevent swimmers, boaters, or

pedestrians from reaching the proposed discharge outfall and the

area of the canal where the discharge will initially mix .

11. After being discharged into the canal, the wastewater

would become diluted and flow northward, out of the canal and

into the open waters of the Gulf. The prevailing currents in

area would most often force the wastewater south toward Pinellas

County and th e mouth of the Anclote River.

12. To determine the characteristics of the wastewater,

the City's consultants collected water from the three proposed

well fields for the new WTP and ran the water through a small,

pilot - scale RO unit to generate an RO conc entrate that is

representative of the proposed RO discharge.

13. It was determined that eight constituents of the

wastewater would likely be present in concentrations that would

exceed applicable state water quality standards: aluminum,

copper, iron, gr oss alpha (a radioactivity measurement) , total

radium, selenium, nickel, and zinc.

The Mixing Zones

14. The Department may authorize mixing zones in which a

wastewater discharge is allowed to mix with the receiving

waters. See Fla. Admin. Code R. 62 - 4.2 44. Within the mixing

zone, certain minimum water quality criteria must be met. A t

the outer boundary of the mixing zone, the applicable state

water quality standards must be met. In this case, the water

quality standards for Class III marine waters are applicable.

15. The City's consultants analyzed the wastewater,

receiving waters, and other factors and used an analytical model

to simulate a number of mixing scenarios. In cooperation with

Department staff, a separate mixing zone w as established for

each of the eight constituents that are not expected to meet

water quality standards at the outfall.

16. The largest mixing zone, for copper, is 1,483.9 square

meters. The smallest mixing zone, for nickel, is 0.7 square

meters. The mixing zones are con servatively large to assure

sufficient mixing. Under most conditions, the mixing is

expected to occur in a smaller area.

Toxicity Analysis

17. Among the minimum criteria that must be met within a

mixing zone is the requirement to avoid conditions that a re

acutely toxic. See Fla. Admin Code R. 62 - 302.500(1)(a). A

wastewater discharge is tested for potential acute toxicity by

exposing test organisms to the undiluted discharge and

determining whether more than 50 percent of the organisms die

within a spec ified time period.

18. The test organisms, mysid shrimp and silverside

minnow, are sensitive species. Therefore, when a discharge is

not acutely toxic to these organisms, it can be reasonably

presumed that the discharge would not harm the native organis ms

in the receiving waters.

19. The acute toxicity test for the proposed RO

concentrate indicated zero toxicity.

20. The Department requested that the City also analyze

the potential chronic toxicity of the proposed discharge. A

wastewater discharge s hows chronic toxicity if exposure to the

discharge adversely affects the growth and weight of the test

organisms.

21. The tests performed on the representative discharge

showed that the proposed discharge of RO concentrate would not

create chronic toxici ty in the mixing zones.

22. PetitionerÓs expert witness, Ann Ney, did not review

the toxicity analyses or other water quality data that were

submitted to the Department by the City. However, she expressed

a general concern about a salty discharge that c ould create

stratification in the canal with higher salinity at the bottom

of the canal that might be hypoxic (little or no dissolved

oxygen). The more persuasive evidence shows that salinity

stratification, or a hypoxic condition, is unlikely to occur.

2 3 . The proposed permit requires the City to conduct

quarterly chronic toxicity tests. The permit also requires the

City to periodically test the water and sediments for any

unexpected cumulative effects of the discharge.

Evaluation of Disposal Options

2 4 . Florida Administrative Code Rule 62 - 620.625(6)

requires that an applicant for a permit to discharge

demineralization concentrate must investigate disposal options

potentially available in the project area. The City evaluated

blending the discharge co ncentrate with the City's re - use water

irrigation program or with the CityÓs domestic wastewater

discharge into the Anclote River. The RO concentrate was too

salty for irrigation use and there was an inadequate volume of

domestic wastewater available thro ughout the year. In addition,

the Anclote River is an Outstanding Florida Water and,

therefore, is afforded the highest water quality protection

under Department rules. See Fla. Admin. Code R. 62 - 4.242 (2).

The City also looked at underground injection b ut that was

economically unreasonable and there was concern about upward

migration of the discharge. It was economically unreasonable to

discharge the concentrate farther out into the Gulf.

Anti - degradation Analysis

2 5 . For a proposed new discharge, a p ermit applicant must

demonstrate that the use of another discharge location, land

application, or recycling that would avoid the degradation of

water quality is not economically and technologically

reasonable. See Fla. Admin. Code R. 62 - 4.242(1)(d). As

d iscussed above, the City investigated other disposal options ,

but they were not economically or technologically reasonable.

2 6 . An applicant for a permit authorizing a new discharge

must demonstrate that any degradation is desirable under federal

standar ds and under circumstances that are clearly in the public

interest. See Fla. Admin. Code R. 62 - 302.300(17). In

determining whether a proposed discharge is desirable under

federal standards and under circumstances that are clearly in

the public interest, the Department is required by Rule

62 - 4.242(1)(b) to consider the following factors:

1. Whether the proposed project is

important to and is beneficial to public

health, safety or welfare (taking into

account the policies set forth in Rule

62 - 302.300, F.A. C., and, if applicable, Rule

62 - 302.700, F.A.C.); and

2. Whether the proposed discharge will

adversely affect conservation of fish and

wildlife, including endangered or threatened

species, or their habitats; and

3. Whether the proposed discharge will

a dversely affect the fishing or water - based

recreational values or marine productivity

in the vicinity of the proposed discharge;

and

4. Whether the proposed discharge is

consistent with any applicable Surface Water

Improvement and Management Plan that ha s

been adopted by a Water M anagement District

and approved by the Department.

2 7 . The proposed project is important to and is beneficial

to public health, safety or welfare because it would provide

drinking water for the public. In addition, the treatm ent and

use of brackish groundwater converts otherwise unusable water

into a valuable resource. The use of brackish water avoids the

use of water in the surficial aquifer that is used by natural

systems, such as wetlands.

2 8 . T he Florida Legislature has found that the

demineralization of brackish water is in the public interest, as

expressed in Section 403.08 8 2, Florida Statutes (2010):

The legislature finds and declares that it

is in the public interest to conserve and

protect water resources, provide a dequate

supplies and provide for natural systems,

and promote brackish water demineralization

as an alternative to withdrawals of

freshwater groundwater and surface water by

removing institutional barriers to

demineralization and, through research,

includi ng demonstration projects, to advance

water and water by - product treatment

technology, sound waste by - product disposal

methods, and regional solutions to water

resources issues.

29 . The proposed discharge would not adversely affect

conservation of fish and wildlife . Because the discharge is not

toxic to sensitive test organisms provides reasonable assurance

that the native fish and other aquatic life would not be

adversely affected by the discharge.

3 0 . The only identified threatened or endangered spe cies

that frequent s the canal waters is the endangered Florida

Manatee. Manatees use the canal because of its relatively warm

waters. Manatees come to the surface to breathe and they drink

fresh water . There is no reason to expect that a manatee moving

through the mixing zones would be adversely affected by the RO

concentrate. The Florida Fish and Wildlife Conservation

Commission, which has primary responsibility for the protection

of endangered and threatened species, did not object to the

proposed per mit.

3 1 . Manatee s and many other aquatic species use seagrasses

as food or habitat. There are no seagrasses in the area of the

canal into which the RO concentrate would be discharged, but

there are dense seagrass beds nearby. The proposed discharge

wou ld have no effect on the seagrasses in the area.

3 2 . The proposed discharge would not adversely affect

fishing or water - based recreational values or marine

productivity in the vicinity of the proposed discharge.

3 3 . Because the proposed discharge is no n - toxic and would

meet Class III water quality standards before reaching the

closest areas where humans have access to the canal and Gulf

waters, there is no reason to believe that the proposed

discharge would be harmful to humans. The proposed discharge

would not adversely affect recreational activities, such as

swimming, boating, or fishing.

3 4 . Petitioner presented the testimony of two fishermen

about fishing resources and water flow in the area, but no

evidence was presented to show how the proposed discharge would

reduce marine productivity.

35. Petitioner contends that the proposed discharge would

adversely affect the Pinellas County Aquatic Preserve. However,

the aquatic preserve is two miles away. The proposed discharge

would probably be undet ectable at that distance. It would have

no effect on the waters or other resources of the aquatic

preserve.

3 6 . With regard to the requirement that the proposed

discharge be consistent with an adopted and approved Surface

Water Improvement and Managemen t Plan for the area, there is no

such plan.

CONCLUSIONS OF LAW

3 7 . For standing to challenge a permit, a petitioner must

show that he will suffer an injury in fact that is of sufficient

immediacy to entitle him to a hearing, and his substantial

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

to protect. See Agrico Chemical Co. v. Dep't of Envtl. Reg. ,

406 So. 2d 478 (Fla. 2d DCA 1981).

38 . Standing is an issue of subject matter jurisdiction

and, therefore, the issue may be raised at any time. Dep 't of

Revenue v. Daystar Farms, Inc. , 803 So. 2d 892, 896 ( Fla. 5th

DCA 2002).

39 . Ross presented no evidence to show that his

substantial interests would be affected by the proposed

discharge. He failed to prove his standing to challenge the

City's permit. However, because the evidentiary hearing was

conducted and proposed recommended orders were filed addressing

the factual issues raised in the petition for hearing, Findings

and Fact and Conclusions of Law are presented in this

Recommended Order.

4 0 . A permit applicant bears the ultimate burden of

providing reasonable assurance that all applicable permitting

criteria and standards will be met. See DepÓt of Transp. v.

J.W.C. Co., Inc. , 396 So. 2d 778, 789 (Fla. 1st DCA 1981).

4 1 . "Reason able assurance," in this context means a

demonstration that there is a substantial likelihood of

compliance with standards, or "a substantial likelihood that the

project will be successfully implemented." Metropolitan Dade

County v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA

1992). It does not mean absolute guarantees.

4 2 . The applicant must prove the facts necessary to show

his entitlement to the permit by a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat. (2010).

4 3 . Ross m ade numerous hearsay objections to the admission

into evidence of various reports and data summaries that were

part of the Department's permit file for the City's proposed

discharge. However, Ross presented no evidence to show that any

statements in the r eports or data summaries were inaccurate or

unreliable. The court in J.W.C. (at 789) stated:

[W]hen agency employees or officials having

special knowledge or expertise in the field

accept data and information supplied by the

applicant, the same data and i nformation,

when properly identified and authenticated

as accurate and reliable by agency or other

witnesses, will be readily accepted by the

[administrative law judge], in the absence

of evidence showing its inaccuracy or

unreliability.

* * *

[T]his having been done, the [administrative

law judge] would not be authorized to deny

the permit unless contrary evidence of

equivalent quality is presented by the

opponent of the permit.

Ross did not present contrary evidence of equivalent quality on

any dis puted factual issue.

4 4 . The City provided reasonable assurance that the

proposed discharge will meet all the antidegradation permitting

requirements of Rule 62 - 4.242, including the requirement to

demonstrate that the proposed discharge is necessary or

d esirable under federal standards and under circumstances which

are clearly in the public interest.

4 5 . The City provided reasonable assurance that the

proposed discharge will meet all the requirements of Rule

62 - 4.244 for the use of mixing zones.

4 6 . T he City provided reasonable assurance that, within

the mixing zones, the proposed discharge will meet the minimum

water quality criteria in Rule 62 - 302.500.

4 7 . The City provided reasonable assurance that the

proposed discharge will meet all the requirem ents applicable to

industrial wastewater discharges, in general, and the specific

requirements of Section 403.0882, Florida Statutes (2010) , and

Rule 62 - 620.625 applicable to discharges of demineralization

concentrate.

4 8 . In summary, the City demonstrat ed its entitlement to

the industrial wastewater facility permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is

RECOMMENDED that the Department issue a final order

determining that Petitioner lacks standing, and appro ving the

issuance of the industrial wastewater facility permit to the

City.

DONE AND ENTERED this 16th day of December , 2010 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of December , 2 010 .

COPIES FURNISHED :

Nona R. Schaffner, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

Thomas Jask, Esquire

Frazer, Hubbard, Brandt & Trask, LLP

595 Main Stree t

Dunedin, Florida 34698

Henry Ross

1020 South Florida Avenue

Tarpon Springs, Florida 34689

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

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

Mimi Drew, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwea lth 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 should be filed with the agency that

will issue the Final Order in this case.