STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
SAVE OUR BAYS, AIR AND CANALS, INC.,
Petitioner, vs. OGC CASE NO. 01-0772 DOAH CASE NO. 01 -1949 TAMPA BAY DESAL and DEPARTMENT DEP01-0995 OF ENVIRONMENTAL PROTECTION,
Respondents, and
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, TAMPA BAY WATER, and PASCO COUNTY,
Intervenors. ______/
SAVE OUR BAYS, AIR AND CANALS, INC.,
Petitioner, vs. OGC CASE NO. 01-1038 DOAH CASE NO. 01 -2720 TAMPA ELECTRIC COMPANY, INC., and DEP01-0996 DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents. and
TAMPA BAY DESAL, LLC, AND TAMPA BAY WATER,
Intervenors. ______/ FINAL ORDER
An Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order to the Department of Environmental Protection ("Department") in these administrative proceedings. The RO indicates that copies were served upon counsel for Petitioner, Save Our Bays, Air and Canals, Inc. ("SOBAC"), Co-Respondents Tampa Bay Desal, LLC ("TBD") and Tampa Electric Company, Inc. ("TECO"), and Intervenors, Southwest Florida Water Management District ("SWFWMD"), Tampa Bay Water ("TBVV'), and Pasco County. A copy of the Recommended Order is attached as Exhibit A. Exceptions to the Recommended Order were filed by SOBAC and TECO. Joint Responses in opposition to SOBAC's Exceptions were filed by the Respondents and Intervenors. The Department filed a separate Response to TECO's Exceptions. SOBAC also filed "Supplemental Exceptions to Recommended Order." Responses in opposition to SOBAC's Supplemental Exceptions were filed by TBD, TBW, and TECO. The matter is now before the Secretary of the Department for final agency action. BACKGROUND In December of 1999, TBID submitted an application to the Department for an industrial wastewater discharge permit authorizing the construction and operation of a proposed desalination facility ("Desal Facility"). The proposed site of the Desal Facility is at the location of TECO's existing Big Bend Power Station ("TECO Station") on the northeast side of Hillsborough Bay in Hillsborough County, Florida. On April 20, 2001, DEP executed a Notice of Intent to Issue National Pollutant Discharge Elimination System Permit No. FLO186813-001-IWIS ("TBD Permit"). The proposed TBD Permit authorizes TBD to construct and operate the Desal Facility, which would discharge wastewater initially into cooling water discharge conduits at the TECO Station and ultimately into Hillsborough Bay. The Department's proposed agency action issuing the TBD Permit was challenged by SOBAC in an Amended Verified Petition for Formal Administrative Hearing or Request for Mediation. SOBAC's administrative challenge was referred to DOAH informal proceedings, and was assigned DOAH Case No. 01-1949. Pasco County, SWFWMD, and TBW subsequently intervened in this formal administrative proceeding in support of the Department's Intent to Issue the Desal Facility permit. In August of 2000, TECO applied to the Department for a modification to TECO's current industrial wastewater facility permit for its existing Big Bend Power Station Permit No. FLOO00817 ("TECO's Permit Modification"). The purpose of TECO's Permit Modification request was to accommodate the construction and operation of TBD's proposed Desal Facility at the TECO Station site. On June 14, 2001, the Department entered a Notice of Intent to Issue TECO's Permit Modification, which was also challenged by SOBAC in a separate Verified Request or Petition for Formal Administrative Hearing or Mediation. SOBAC's challenge to TECO's Permit Modification was referred to DOAH and assigned DOAH Case No. 01-2720. TBD and TBW subsequently intervened in support of DEP's agency action proposing to issue TECO's Permit Modification. These two administrative proceedings initiated by SOBAC were ultimately consolidated for a final hearing before DOAH Administrative Law Judge, J. Lawrence Johnston ("ALJ"). A final hearing was held before the ALJ in Tampa on August 27-31, and September 4-7 and 11, 2001. The primary issue before the AU at the final hearing was whether TBD had provided reasonable assurance that its proposed Desal Facility project would meet all applicable state permitting standards for industrial wastewater facilities. After the DOAH final hearing was concluded, TECO filed a motion with the AU seeking an award of attorney's fees and costs from SOBAC. RECOMMENDED ORDER The AU entered his Recommended Order ("RO") in these consolidated administrative proceedings on October 17, 2001. Included in the RO now on agency review are the following critical findings and conclusions of the ALJ:
1. TBD provided reasonable assurance that the proposed Desal Facility discharges will not violate any dissolved oxygen ("DO") standards and criteria set forth in Rules 62-302.530(31) and 62-302.300(15), Florida Administrative Code ("F.A.C.").
2. TBD demonstrated through its evidence that the proposed Desal Facility discharges will not adversely affect: the conservation of fish and wildlife, including endangered species or their habitats; fishing or other water-based recreational values; or marine productivity.
3. TBD further demonstrated the proposed Desal Facility discharges will not lower the water quality in Tampa Bay below Class III marine water quality standards.
4. TECO's Permit Modification request "amounts to nothing more than a piping change" to accommodate TBD"S Desal Facility discharges; and the Permit Modification will not cause any pollution in violation of Chapter 403, Florida Statutes, or applicable DEP rules.
The AU ultimately recommended that the Department enter a final order issuing TBD's Desal Facility permit and TECO'S related modification to its Big Bend Station permit. The AU also recommended that the Department's final order deny TECO's motion for an assessment of its reasonable attorney's fees and costs against SOBAC pursuant to § 120.595(l), Florida Statutes ("F.S.").
RULING ON MOTION TO EXPEDITE
The deadline for entry of a Final Order in these administrative proceedings is December 3, 2001.1 A Motion to Expedite Entry of Final Order was filed with the Department on behalf of TBW and Pasco County. These are rather complex proceedings featuring a lengthy DOAH final hearing and an extensive record containing 18 separate transcripts of testimony and numerous exhibits. In addition, three separate sets of Exceptions to the RO have been filed with and considered by the Department. Nevertheless, the Motion to Expedite appears to show good cause for the requested relief. Accordingly, the Motion to Expedite is granted to the extent that the Final Order will be entered prior to the December 3, 2001, deadline.
STANDARDS OF ADMINISTRATIVE REVIEW
Subsection 120.57(l)(1), F. S., prescribes that a state agency reviewing a DOAH recommended order may not reject or modify the findings of fact of an administrative law judge, "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence." Subsection 120.57(l)(1) also provides that an agency may reject or modify an administrative law judge's conclusions of law and interpretations of administrative rules "over which it has substantive jurisdiction." A reviewing agency may not reweigh the evidence presented at a DOAH formal hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. These evidentiary matters are within the province of the administrative law judges, as the triers of the facts. Belleau v. Dept. of Environmental Protection, 695 So.2d 1305, 1307 (Fla. 1st DCA 1997); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Furthermore, a reviewing agency is not free to modify the findings of fact in a DOAH recommended order by interpreting the evidence or drawing inferences therefrom in a manner proposed by a party that is different from the reasonable interpretations made and inferences drawn by a hearing officer. Id. at 1281-1282. A reviewing agency also has no authority to evaluate the quantity and quality of the evidence presented at a DOM formal hearing, beyond making a determination that the evidence is competent and substantial. Brogan v. Carter, 671 So.2d 822, 823 (Fla. 1st DCA 1996). Thus, if the record in this case discloses any competent substantial evidence supporting a finding of fact in the RO, I am bound by such factual finding in preparing this Final Order. Bradley, supra, at 1123.
RULINGS ON SOBAC'S EXCEPTIONS
Exception No. 1 SOBAC's first Exception objects to the portion of Finding of Fact No. 125 wherein the AU summarizes the credentials of SOBAC's expert witness, Dr. Carl Goodwin. SOBAC does not contend that the ALJ's challenged factual findings are not based on competent substantial evidence. Instead, SOBAC suggests that the AU should have supplemented Finding of Fact No. 125 by including additional information about Dr. Goodwin's educational background and current job title. In a formal administrative proceeding, a state agency has no authority to make independent findings of fact in its final order that are supplementary to the factual findings contained in the DOAH recommended order on review. See, e.q., North Port, Fla. v. Consolidated Minerals, 645 So.2d 485 (Fla. 2d DCA 1994); Inverness Convalescent Center v. Dept. of H.R.S., 512 So.2d 1011, 1015 (Fla. lst DCA 1987). The scope of agency review of a DOAH recommended order is limited to ascertaining whether the administrative law judge's existing findings of fact are supported by competent substantial evidence of record. North Port, Fla., 645 So.2d at 487. Accordingly, SOBAC's Exception No. 1 is denied. Exception No. 2 SOBAC's second Exception does not object to any specific findings or conclusions of the AU in the RO on review. SOBAC also does not contend that any of the ALJ's findings of fact dealing with the flushing/residual time of Tampa Bay are not based on competent substantial evidence. SOBAC merely comments that there "is a substantial difference of opinion" among the experts testifying at the DOAH final hearing as to the flushing/residual time of Tampa Bay. The decision to accept the testimony of one expert witness over the testimony of another expert is an evidentiary matter within the sound discretion of the ALJ, who is the trier of the facts in these proceedings. This evidentiary decision of the AU cannot be altered by a reviewing agency, unless there is a complete lack of competent substantial evidence of record from which the challenged factual finding could be reasonably inferred. See, Collier Medical Center v. State, Dept. of HRS, 446 So.2d 83, 85 (Fla. 1 st DCA 1985); and Florida Chapter of Sierra Club v. Orlando Utilities Commission, 436 So.2d 383, 389 (Fla. 5th DCA 1983). I conclude that the ALJ's Findings of Fact dealing with the flushing/residual time of Tampa Bay (Nos. 100 and 118-127) are based on competent substantial evidence, including the expert testimony of Dr. Arthur Parsons and Dr. Mark Luther. I thus have no authority to reject these factual findings of the ALJ. Consequently, SOBAC's Exception No. 2 is denied. Exception No. 3 SOBAC's third Exception objects to the third sentence of the ALJ's Finding of Fact No. 61 stating that "[tlhere are naturally occurring dissolved oxygen levels below 4.0 mg/I in parts of Tampa Bay." However, this factual finding of the ALJ is supported by the expert testimony at the final hearing of marine biologist, Charles Courtney. Since the challenged factual finding is based on competent substantial evidence of record, it may not be rejected by this agency on administrative review. See subsection 120.57(l)(1), F.S. Therefore, SOBAC's Exception No. 3 is denied. Exception Nos. 4 and 16 These two Exceptions of SOBAC object to the portions of paragraphs 134 and 244 of the RO wherein the ALJ states that the "natural conditions" referred to in Rule 62-302.300(15), F.A.C., are those conditions found in the intake water to the Desal Facility. The record reflects that the challenged finding in paragraph 134 of the RO is supported by the expert testimony at the final hearing of Timothy Parker, the Department's Administrator for Wastewater Facilities at the Southwest District Office. In addition, the ALJ's challenged legal conclusion in paragraph 244 of the RO is consistent with Mr. Parker's agency interpretation of Rule 62-302.300(15), F.A.C. A state agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction and expertise. See, eg., Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987, 989 (Fla. 1985); Florida Public Employee Council, 79 AFSCME v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). Rule 62-302.300(15), F.A.C., is an administrative rule adopted and enforced by the Department and is thus within this agency's regulatory jurisdiction and expertise. Therefore, it is the primary responsibility of the Department to interpret the provisions of this rule, and such agency rule interpretation should not be overturned unless it is "clearly erroneous." See, e.g., Dept. of Environmental Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985); and Reedy Creek Improvement Dist. v. Dept. of Environmental Regulation, 486 So.2d 642, 648 (Fla. 1st DCA 1986). I conclude that the agency interpretation of Rule 62-302.300(15), as testified to by Timothy Parker at the final hearing and approved by the ALJ in his Conclusion of Law 244, is not clearly erroneous and should be affirmed. In view of the above, SOBAC's Exception Nos. 4 and 16 are denied. Exception Nos. 5, 6, 7, and 8 These related Exceptions object to the ALJ's factual findings in paragraphs 57, 171, 173, and 182 of the RO pertaining to the projection and monitoring of chlorides and/or salinity levels in Tampa Bay as the result of discharges of wastewater from the proposed Desal Facility. The ALJ found that the maximum salinity levels of "Middle Tampa Bay" during the period from 1974 through June of 2001 ranged from 38.2 parts per thousand at the surface to 39.6 parts per thousand at the bottom of the water column. The ALJ observed that TBD's proposed wastewater permit restricts discharges from the Desal Facility to a daily maximum salinity of 35.8 parts per thousand, below the maximum salinity levels identified for Middle Tampa Bay. The ALJ also found that discharged wastewater chlorides limit imposed by the Department in the proposed TBD Permit (10% above chlorides level of the intake water) complies with Rule 62-302.530(18), F.A.C. The AU further found in paragraph 171 of the RO that the proposed TBD Permit's "additional requirement of a minimum dilution ratio has the effect of limiting chlorides [in discharged wastewater] to 7 percent above intake for 384 hours and 5 percent for the remainder of the year." The ALJ noted that this additional requirement in the TBD Permit "provides extraordinary assurance that the state water quality standard for chlorides will be met." I conclude that the challenged factual findings of the ALJ are based on competent substantial evidence of record and must be adopted in this Final Order. This competent substantial evidence includes the expert testimony of Thomas O'Connor, Charles Courtney, Timothy Parker, and TBD's Exhibit Nos. 200, 203, 254, 256, and 257. The RO on review reflects that the ALJ accorded more credibility and weight to the testimony of the experts called by TBD and the Department to testify in support of the proposed Desal Facility project than to SOBAC's experts testifying in opposition to the project. In paragraph 193 of the RO, the ALJ observed that "none of SOBAC's experts spent a great deal of time studying TBD's desal project" and their testimony mostly consisted of "general scientific principles... not directly tied to specifics of the desal project." The ALJ also noted that SOBAC's experts were often "not familiar with all the efforts of experts offered by the other parties" to address SOBAC's concerns. As discussed above, the decision to accept one expert's testimony over that of another is an evidentiary matter within the sound discretion of the ALJ. Collier Medical Center , 446 So.2d at 85. Moreover, the testimony of SOBAC's expert witnesses in opposition to the Desal Facility project does not nullify the testimony of the expert witnesses of TBD and the Department in favor of the project. If there is competent substantial evidence of record supporting the ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting contrary findings. Arand Construction Co. v._Pyer, 592 So.2d 276, 280 (Fla. 1st DCA 1991); Conshor, Inc. v. Roberts, 498 So.2d 622, 623 (Fla. 1st DCA 1986). Based on the above, SOBAC's Exception Nos. 5, 6, 7, and 8 are denied. Exception Nos. 9, 10, 11, 12, 13, 14, and 15 These seven Exceptions of SOBAC object to various paragraphs in the RO dealing with the issue of whether the Desal Facility wastewater discharges will comply with water quality criteria and standards for DO. The ALJ found that; (1) if the DO levels in the intake water are less than 5.0 mg/l, the Desal Facility operation will not lower DO levels below 5.0 mg/l; and (2) if the DO levels in the intake water are below 4.0 mg/l, the DO levels will be increased, rather than decreased, by the desalination process. (See Finding of Fact No. 135). The AU thus concluded that TBD provided reasonable assurance that the Desal Facility discharges of wastewater will not violate DO water quality standards and criteria set forth in Rules 62-302.300(15) and 62-302.530(31), F.A. C.2 A review of the DOM record confirms that the ALJ's findings on projected DO levels in the proposed Desal Facility intake and discharge waters are supported by the modeling documentary evidence presented by TBD and the expert testimony of Thomas O'Connor, Michael Hatcher, Robert Reiss, and Timothy Parker. I also concur with the ALJ's rule interpretations concluding that TBD demonstrated that discharges of wastewater from the proposed Desal Facility will comply with DO water quality standards and criteria set forth in Rules 62-302.300(15) and 62-302.530(31), F.A.C. SOBAC's expert witness, Dr. Mike Champ, did testify that DO levels will drop between intake and discharge at the Desal Facility. Dr. Champ also testified that the TBD Permit proposed to be issued by the Department would allow violations of applicable DO water quality standards and criteria. However, the AU repeatedly stated in his RO that Dr. Champs' testimony was far less persuasive than, and was outweighed by, the cumulative expert testimony and modeling evidence presented by TBD and the other parties at the final hearing. See, Findings of Fact Nos. 128, 133, 137, 172-173, and 195-200. As previously discussed in this Final Order, issues such as weight of the evidence and credibility of witnesses are factually-related matters generally within the prerogative of the ALJ. Furthermore, it is within the sound discretion of the AU to accept one expert's testimony over that of another. I thus decline to reweigh the evidence and substitute my judgment for that of the AU as to the credibility of the various expert witnesses testifying on the DO issue. In view of the above, SOBAC's Exception Nos. 9 through 15 are denied. Exception Nos. 17, 18, 19, 20, and 21 SOBAC's Exception No. 17 does not object to any specific findings of fact or conclusions of law in the ALJ's RO. Instead, SOBAC requests that the conditions of the TECO Permit Modification should be further modified to require that repairs to the TECO Station discharge canal walls and jetty "be completed prior to beginning desalination operations or discharges," rather than at some unspecified future date. This request of SOBAC, however, would require that I make supplemental factual findings in this Final Order to support the necessity of revising the conditions of the TECO Permit Modification as suggested by SOBAC. SOBAC's Exception Nos. 18-20 object to the ALJ's findings of fact dealing with the specific conditions of TBD's Permit requiring external monitoring programs. See Section VI of TBD's Permit (TBD Exhibit No. 203). In paragraphs 188-190 of the RO, the AU found that the Desal Facility permit provisions require TBD to develop and submit to the Department a biological monitoring program to monitor sea grasses, benthic macro invertebrates, and fish populations in Tampa Bay; and a water quality monitoring program to monitor conductivity, salinity, DO, and temperature. In its Exception No. 21, SOBAC also requests that I make new findings of fact to support additional and/or revised monitoring conditions in the TBD Permit proposed by SOBAC relating to the sampling location for measurements of chlorides, salinity, conductivity, and DO. Nevertheless, I have previously cited herein the established case law of Florida holding that I lack authority to make independent findings of fact in this Final Order that are supplemental to the ALJ's factual findings in his RO. North Port, Fla., 645 So.2d at 487; Inverness Convalescent Center, 512 So.2d at 1015. 1 further conclude that the ALJ's Findings of Fact Nos. 188-190 are based on competent substantial evidence of record and must be affirmed in this Final Order. (See expert testimony of Charles Courtney, Roy Robert Lewis, Michael Hatcher, Timothy Parker, and TBD's Exhibit Nos. 200 and 203). I would also note that the Florida courts have cautioned that substantial modifications of a draft permit made during the course of a de novo formal proceeding that are not supported by factual findings of the ALJ based on competent substantial evidence may constitute a denial of due process to the applicant. Manatee County v. Dept. of Environmental Regulation, 429 So.2d 360, 362 (Fla. 1st DCA 1983); Hopwood v. Dept. of Environmental Regulation, 402 So.2d 1296, 1299 (Fla. 1st DCA 1981). There are no factual findings or recommendations by the AU in his RO as to the necessity of the permit modifications suggested by SOBAC. I thus decline to impose additional permit conditions on TBD or TECO in this Final Order. Based on the above and my prior ruling denying SOBAC's first Exception, SOBAC's Exception Nos. 17 through 21 are denied. Exception No. 22 In its Exception No. 22, SOBAC again fails to object to a specific finding of fact or conclusion of law in the RO on review. SOBAC merely comments that the "provision of reasonable assurance must be provided at the time of permit issuance and cannot be tied to the permit revocation or re-opener' clauses as a matter of law." This comment of SOBAC seems to be directed to numbered paragraph 190 of the RO wherein the AU finds that the Department may "reopen" TBD's Permit, if the data collected from the required external monitoring programs "indicate an exceedance or reasonable potential for an exceedance of water quality standards." 3 I acknowledge that a party requesting a permit from the Department must provide reasonable assurance, at the time of issuance of the permit, that the proposed project will not violate any applicable environmental standards. See Metro. Dade County v. Coscan Florida, Inc., 609 So.2d 644 (Fla. 3d DCA 1992). However, the Coscan court concluded that a permit applicant's agreement to correct future problems after they occur is one factor that may be properly considered by the Department in determining whether reasonable assurance has been provided. Coscan, 609 So.2d at 648. I also concur with the ALJ's finding in numbered paragraph 190 of the RO that the external monitoring program and related re-opener provisions of TBD's Permit "go beyond the requirements in DEP's rules." Based on a review of the record in these proceedings, I view these external monitoring program and re-opener provisions of TBD's Permit as providing "additional" assurance that the Desal Facility will not violate applicable environmental standards. Accordingly, SOBAC's Exception No. 22 is denied. Exception No. 23 SOBAC's Exception Nos. 23 and 24 are contained in a separate document entitled "Petitioner's Supplemental Exceptions to Recommended Order." These two Supplemental Exceptions were filed with the Department on November 1, 2001, within the 15-day deadline prescribed in § 120.57(l)(k), F.S., and Rule 28-106.217(l), F.A.C. In their Responses, TBD, TBW, and TECO contend that the filing of supplemental exceptions to a recommended order is not authorized by statute or rule. In prior final orders of this agency, the Secretary has ruled that the filing of supplemental exceptions with the Department after the 15-day deadline is not authorized by either § 120.57(l)(k) or Rule 28-106.217(l). In these proceedings, however, SOBAC's two Supplemental Exceptions were filed with the Department and served upon the other parties within 15 days after the RO was submitted. As correctly noted in the Responses to SOBAC's Supplemental Exceptions, the filing of "supplemental exceptions" is not expressly authorized by either § 120.57(l)(k) or Rule 28-106.217(l). Nevertheless, there are no provisions in the cited statute or rule mandating that timely filed exceptions to a recommended order must be contained in one legal document. With respect to concerns over due process and efficacy of the administrative review process, I see no practical difference between SOBAC's 24 Exceptions being embodied in one timely-filed document or in two. In any event, I conclude that SOBAC's Exception No. 23 should be rejected on its merits. This Exception of SOBAC consists of bare conclusory allegations of counsel that the ALJ's assertion in paragraph 185 of the RO that "EPA only requires that monitoring occur at least once a year" is an erroneous conclusion of law.4 However, SOBAC fails to cite to any provisions of the Clean Water Act that would arguably support its conclusion that federal law requires monitoring of discharges from desalination facilities more frequently than once a year. Furthermore, this challenged legal conclusion of the AU appears to be supported by the expert testimony at the final hearing of Timothy Parker Jr. Vol. 3A, page 79). Consequently, SOBAC's Exception No 23 is denied. Exception No. 24 SOBAC's final Exception is an amplification and continuation of its first Exception dealing with the credentials of its expert witness, Dr. Carl Goodwin. SOBAC's suggestion that the RO on review should be modified to include additional information about Dr. Goodwin's current job title is rejected for the reasons set forth in detail in my ruling denying SOBAC's Exception No. 1. SOBAC's Exception No. 25 is thus denied. RULINGS ON TECO'S EXCEPTIONS Exception No. 1 TECO's initial Exception asserts that the first sentence of the ALJ's Finding of Fact No. 44 contains an erroneous reference to cooling "tower" condenser units. TECO contends that there is no competent substantial evidence of record of any cooling "towers" in existence at its Big Bend Station, and requests that the word "tower" be stricken from the ALJ's Finding of Fact No. 44. Upon review of the entire record in these consolidated proceedings, I concur with this Exception. Accordingly, the ALJ's Finding of Fact No. 44 is modified by deleting the word "tower" from the fourth line. However, I view this to be a minor matter and harmless error having no effect on the final disposition of these proceedings. Exception No. 2 TECO's second and final Exception objects to the ALJ's Finding of Fact No. 215 and his related Conclusion of Law No. 254. In these two paragraphs, the ALJ determined that SOBAC did not participate in these administrative proceedings "for an improper purpose" within the purview of § 120.595(l), Florida Statutes, authorizing the award of reasonable attorney's fees and costs to a prevailing party. TECO contends that Conclusion of Law No. 254 should be rejected in this Final Order. TECO also proposes alternative language concluding that the DOM record demonstrates a "complete absence of any justifiable issue of fact or law" to support SOBAC's claims that the subject wastewater discharge permit should not be issued to TBID. Subsection 120.595(l)(b), Florida Statutes, states that the "final order in a proceeding pursuant to s. 120.57(l) shall award reasonable costs and a reasonable attorneys fee to the prevailing party only where the non-prevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose" (emphasis supplied). No such determination was made by the AU in the RO now on agency review. Rather, the AU expressly determined that there was no "improper purpose" on the part of SOBAC in its participation in these administrative proceedings. In addition, the case law of Florida holds that question of whether a party intended to "participate in an administrative proceeding for an improper purpose" is an issue of fact within the prerogative of the administrative law judges, as the triers of the facts. Burke v. Harbor Estates Associates, Inc., 591 So.2d 1034, 1037 (Fla. 1 st DCA 1991). Accord, Bevan v. Cowart, 17 FALR 319, 326 (Fla. DEP 1994). In Finding of Fact No. 215, the ALJ stated that the evidence presented at the DOAH final hearing reflected that "SOBAC participated in this proceeding in an attempt to raise justifiable issues arising from the peculiarities of the relationship of TECO's permit modification application to TBID's permit application." TECO essentially disagrees with the findings made and inferences drawn by the AU from the pleadings filed and evidence presented by SOBAC regarding the issue of whether the Petitioner participated in these proceedings for an improper purpose. However, it is the function of the ALJ, as the finder of the facts in a formal administrative proceeding, "to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence." See, e.q., Goin v. Commission of Ethics, 658 So.2d 1131, 1138 (Fla. 1 st DCA 1995). 1 decline to substitute my judgment for that of the AU on this "improper purpose" factual issue by reweighing the evidence or by drawing factual inferences different from those of the ALJ. The ALJ also ruled in his Conclusion of Law No. 254 that the issues raised in SOBAC's Amended Petition were "justifiable" and were thus not of a frivolous nature indicative of an improper purpose. For many years, the case law of Florida uniformly held that state agencies were free to reject conclusions of law in DOAH recommended orders. However, section 120.57(l), Florida Statutes (1995), was amended in 1996 and again in 1999 to limit the authority of a state agency to only reject those conclusions of law over which the agency "has substantive jurisdiction." See subsection 120.57(1)(j), Florida Statutes (Supp. 1996), subsequently amended and renumbered as subsection 120.57(l)(1), Florida Statutes (2000). TECO does not cite to any recent case law holding that the ALJ's conclusion of law that SOBAC has not participated in these proceedings for an improper purpose is a legal matter within this agency's "substantive jurisdiction" under the current statutory provisions of subsection 120.57(l)(1). For the reasons stated above, TECO's Exception No. 2 is denied. CONCLUSION In his Finding of Fact No. 166, the ALJ stated that the Department's review of TBD's permit application "is one of the most thorough [permit reviews] ever conducted by DEP." The ALJ further stated that the proposed Desal Facility permit has conditions providing a "wide margin of environmental protection." Upon review of the DOAH record in these proceedings, I concur with these critical observations of the ALJ. The Department's staff review of the Desal Facility permit application extended for a period of approximately 16 months, culminating in the issuance of a proposed permit to TBD containing 21 pages of permit conditions. In addition, SOBAC's administrative challenges to TBD's Permit and TECO's Permit Modification resulted in a consolidated DOAH final hearing lasting approximately two weeks. This lengthy final hearing featured the testimony of multiple expert witnesses who testified in support of the issuance of the permits to TBD and TECO. I thus conclude that TBD and TECO have provided reasonable assurance that the Desal Facility project and TECO Station permit modification will not violate any applicable environmental criteria or standards. It is therefore ORDERED: A. The first sentence of paragraph 44 of the RO is modified by deleting therefrom the word "tower." B. The RO is otherwise adopted in its entirety and incorporated by reference herein. C. TECO's request for an award of attorney's fees and costs from SOBAC under § 120.595(l), Florida Statutes, is denied. D. The Department's Southwest District Office is directed to ISSUE to TBD Permit No. FLO186813-001-lWlS authorizing the construction and operation of the Desal Facility. This permit is subject to the conditions set forth in the proposed permit issued on April 20, 2001 (TBD's Ex. 203), and the two additional permit conditions set forth in TBD's Exhibit 470. E. The Department's Southwest District Office is further directed to ISSUE to TECO Permit Revision No. FLOO00817 Rev. B authorizing piping modifications to the Big Bend Power Station to accommodate the Desal Facility. This permit revision is subject to the conditions set forth in the proposed permit attached to the Intent to Issue Permit Revision dated June 14, 2001 (TBD Ex. 225 and TECO Ex. 1 -C). Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department. DONE AND ORDERED this day of November, 2001, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
______DAVID B. STRUHS Secretary
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Endnotes:
1 Section 120.60(l), F.S., provides that a permit application must be approved or denied by the Department in a formal administrative proceeding within 45 days after DOAH submits a recommended order to this agency. The RO now on review was submitted to the Department on October 17, 2001. Since the last day of the 45-day period falls on a Saturday, the period is extended until the following Monday, December 3, 2001. See Rule 28-106.103, F.A.C.
2 Rule 62-302.530(31), F.A.C., requires that "actual DO shall not average less than 5.0 in a 24-hour period and shall never be less than 4.0" for Class III marine water. It is undisputed that Tampa Bay is a Class III marine water body. Nevertheless, if the DO levels of the Desal Facility intake water do not comply with the Rule 62-302.530(31) numeric criteria, Rule 62-302.300(15), F.A.C., as interpreted by the Department and the ALJ, does not legally require TBD to increase these DO levels in the operation of the Desal Facility and discharge of wastewater.
3 Section V11. E. Re-opener Clause of TBD's Draft Permit (TBD's Ex. 203) provides that the permit shall be modified or revoked and reissued to comply with applicable effluent limitations imposed by the Clean Water Act. This "re-opener" provision also provides that TBD's Draft Permit may be reopened to adjust effluent limitations or monitoring requirements if future data reflects "a need for a different limitation or monitoring requirement."
4 I agree with SOBAC to the limited extent that the challenged portion of the ALJ's "Finding of Fact" No. 185 is essentially a conclusion of law. Nevertheless, neither a reviewing agency nor an appellate court is bound by the labels affixed to "findings of fact" or "conclusions of law" in a DOAH recommended order. If a finding of fact or conclusion of law is improperly labeled in a recommended order, the label is to be disregarded and the matter treated as if it were properly labeled. Battaglia Properties v. Land and Water Adjudicatory Commission, 629 So.2d 161, 168 (Fla. 5th. DCA 1994).
ATTACHMENT
STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS SAVE OUR BAYS, AIR AND CANALS, INC., ) ) Petitioner, ) ) vs. ) ) Case No. 01-1949 TAMPA BAY DESAL and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, ) ) Respondents, ) ) and ) ) SOUTHWEST FLORIDA WATER MANAGEMENT ) DISTRICT, TAMPA BAY WATER, and PASCO ) COUNTY, ) ) Intervenors. ) ______) SAVE OUR BAYS, AIR AND CANALS, INC., ) ) Petitioner, ) ) vs. ) ) TAMPA ELECTRIC COMPANY, INC., and ) Case No. 01-2720 DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, ) ) Respondents, ) ) and ) ) TAMPA BAY DESAL, LLC, and TAMPA BAY ) WATER, ) ) Intervenors. ) ) ) ) RECOMMENDED ORDER
On August 27-31, September 4-7, and September 11, 2001, a final administrative hearing was held in this case in Tampa, Florida, before J.
Lawrence Johnston, Administrative Law Judge (ALJ), Division of Administrative
Hearings (DOAH).
APPEARANCES
For Petitioner, Save Our Bays, Air and Canals, Inc.:
Ralf G. Brookes, Esquire 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904-9604
For Respondent, Department of Environmental Protection:
W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
For Respondent, Tampa Bay Desal, LLC:
Douglas P. Manson, Esquire Jane Vinci, Esquire David M. Pearce, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543
Cathy M. Sellers, Esquire Jon Moyle, Jr., Esquire Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 118 North Gadsden Street Tallahassee, Florida 32301-1508
For Respondent, Tampa Electric Company, Inc.:
Lawrence N. Curtin, Esquire Susan L. Stephens, Esquire Holland and Knight, LLP Post Office Drawer 810 Tallahassee, Florida 32302
For Intervenor, Tampa Bay Water:
E. A. "Seth" Mills, Jr., Esquire Robert L. Olsen, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438
12 Linda Loomis Shelley, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301
Donald D. Conn, Esquire General Counsel Tampa Bay Water 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761-3930
For Intervenor, Southwest Florida Water Management District:
William S. Bilenky, Esquire Jack R. Pepper, Jr., Esquire Southwest Florida Water Management District 2379 South Broad Street Brooksville, Florida 34609-6899
For Intervenor, Pasco County:
Joseph D. Richards, Esquire Pasco County Attorney's Office 7530 Little Road, Suite 340 New Port Richey, Florida 34654-5598
STATEMENT OF THE ISSUES
There are two issues in these cases: (1) whether Tampa Bay Desal, LLC
("TBD") provided reasonable assurances that its permit application to discharge wastewater from a proposed seawater desalination plant, National Pollutant
Discharge Elimination System ("NPDES") Permit Application No. FL0186813-001-
IWIS, meets all applicable state permitting standards for industrial wastewater facilities; and (2) whether Tampa Electric Company, Inc. (TEC) provided reasonable assurances that its proposed modification to an existing industrial wastewater facility permit, NPDES Permit Modification No. FL0000817-003-IWIS, meets all applicable state permitting standards.
PRELIMINARY STATEMENT Prehearing proceedings in these cases (and related cases already closed) have been extraordinarily complicated and compressed in time. Much of what occurred prehearing is omitted from this Preliminary Statement. (If reference
13 to omitted prehearing proceedings is required, they are recorded in the official DOAH files.)
On December 14, 1999, TBD submitted an application to DEP for an industrial wastewater discharge permit concerning the proposed operation of a desalination facility at TEC's Big Bend Power Station site. On April 20, 2001,
DEP issued a Notice of Intent to Issue the Proposed Permit for the desalination facility. This Intent to Issue is in evidence as TBD Ex. 203. The challenge of Save Our Bays, Air and Canals, Inc. (SOBAC) to DEP's Intent to Issue is framed in the Amended Verified Petition for Formal Administrative Hearing (or
Request for Mediation) SOBAC filed in DOAH Case No. 01-1949 on July 16, 2001.
SWFWMD, Tampa Bay Water (TBW), and Pasco County intervened in support of DEP's
Intent to Issue in Case No. 01-1949.
On August 17, 2000, TEC applied to DEP for a permit revision to TEC's existing industrial wastewater facility permit for Big Bend Power Station,
Permit No. FL0000817 (Application No. FL0000817-003-IW1S) (the "TEC Permit
Modification") to accommodate the desalination plant at the Big Bend site. On
June 14, 2001, DEP issued a Notice of Intent to Issue Substantial Permit
Revision FL0000817 Rev. B to TEC. This Intent to Issue is in evidence as TEC
Ex. 1-C. SOBAC's challenge to this Intent to Issue is framed in SOBAC's
Verified Request of Petition for Formal Administrative Hearing (or Mediation) filed on June 27, 2001; after referral to DOAH, this case was given DOAH Case
No. 01-2720. TBD and TBW intervened in support of DEP's action.
These cases were consolidated for final hearing in Tampa, Florida, for three weeks beginning August 27, 2001. The parties filed a Pre-Hearing
Stipulation on August 20, 2001.
Most of the numerous prehearing motions filed in these cases were the subject of interlocutory orders and rulings recited on the record at the outset of final hearing, but ruling was reserved as to: TEC's Motion to Strike portions of the verified petition filed in Case No. 01-2720 on August 2, 2001;
14 and TBD's Motion for Sanctions filed on August 13, 2001, regarding SOBAC expert
Ralph Huddleston.
At the final hearing, the following witnesses were called in the parties' cases-in chief: TBD called Walter Howard, Thomas O'Connor, Charles M.
Courtney, Robin Lewis and Tim DeFoe; TEC called Greg Nelson and Michael Hatcher
(DEP employee); DEP called Tim Parker (DEP employee); and SOBAC called B. J.
Lower, John Yoho, Robert Murphy, Dr. Arthur Rost Parsons (by telephone), Steve
Jones, Scott Herber, Dr. Carl Goodwin, Ron Chandler, Dr. Mike Champ, and Dr.
Wayne Carter Isphording. The following witnesses were called in rebuttal: TBD called Robin Lewis, Dr. Mark Luther, Charles Courtney, C. Robert Reiss,
Dr. Robert Byrne, and Andrew Driscoll; SWFWMD called Dr. David Tomasko (SWFWMD employee); and TBW called Tim Parker.
In addition, the following exhibits were admitted into evidence at the final hearing: SOBAC's Exhibits 46, 57, 69, 70, 76, 152 (video without sound portion), 153 and 225 (previously designated as TBD's Ex. 386 in the Pre-
Hearing Stipulation); TBD's Exhibits 1A-O, Exhibits 1-204, 207-208, 210-216,
225, 230, 231, 233-235, 237-250, 252-256, 258, 278, 280, Exhibits 283A-L, 284,
286-289, 291, 296-298, 314, 316, Exhibits 467 A-O, and 468-474; TEC's Exhibits
1-A, 1-B, and 1-C; TBW's Exhibits 1-13 and 15-39; DEP's Exhibit 1; and SWFWMD's
Exhibits 1-3.
After presentation of the evidence, the parties were given ten days from the filing of the Transcript in which to file proposed recommended orders. The
Transcript (in 19 volumes) was filed on September 14, 2001. The following proposed recommended orders were filed on September 24, 2001: a Joint Proposed
Recommended Order filed by TBD, SWFWMD, and DEP; a joint Proposed Recommended
Order filed by TBW and Pasco County; and a Proposed Recommended Order filed by
TEC, which also filed a Motion for Attorney's Fees and Costs Pursuant to
Section 120.595(1). Electronic transmission of SOBAC's Proposed Recommended
Order bears a filing date of September 25, 2001.
15 On October 2, 2001, TEC filed a Motion to Strike SOBAC's Proposed
Recommended Order, and TBD filed a Motion to Strike SOBAC's Proposed
Recommended Order or Alternatively for Sanctions against SOBAC. In part, these motions to strike argued that SOBAC's Proposed Recommended Order was late and exceeded the 40-page limit. SOBAC responded in opposition to these motions and also filed alternative motions to be allowed to file a late and long proposed recommended order, if necessary. TEC filed a response in opposition to SOBAC's alternative motions.
Based on the filings, the motions to strike are denied, and all proposed recommended orders have been considered. As for TBD's alternative motion for sanctions, no authority for imposition of other sanctions is cited, and none has been found. Nonetheless, shortcomings in SOBAC's Proposed Recommended Order self-impose the de facto sanction of less effective advocacy of SOBAC's position.
FINDINGS OF FACT A. Parties other than SOBAC
1. Poseidon Resources, LLC wholly owns TBD as one of Poseidon Resources' subsidiaries. Poseidon Resources formed TBD, the successor to S&W Water, LLC, as a special purpose project company to properly staff and finance the desalination project. TBW entered into a 30-year purchase agreement with TBD
(then known as S & W Water, LLC) in 1999 to build, own and operate the desalination facility. Poseidon Resources operates as a privately-held company and all stockholders are major corporations. Poseidon Resources opened for business in 1995 and has over $300 million in water processing assets under management.
2. DEP is an agency of the State of Florida. The United States
Environmental Protection Agency ("EPA") delegated its NPDES permitting program to the State of Florida and is run by DEP.
16 3. TEC is an investor-owned electric utility serving Hillsborough, Polk,
Pasco, and Pinellas Counties. TEC owns and operates the Big Bend generating station, an electric plant consisting of four coal-fired steam units having a combined capacity of approximately 1800 megawatts.
4. SWFWMD is a water management district in the State of Florida.
SWFWMD reviews and acts upon water use permit applications and protects and manages the water and water-related resources within its boundaries. TBW and all of its Member Governments are within the geographical and legal jurisdiction of SWFWMD.
5. Pasco County is a political subdivision of the State of Florida, a member government of TBW, and is located within the jurisdiction of SWFWMD.
Pasco County is a major source of the groundwater used by TBW.
6. TBW is a regional public water supply authority. TBW is the sole and exclusive wholesale supplier of potable water for all its member governments of
TBW, which are Hillsborough County, Pasco County, Pinellas County, the City of
New Port Richey, the City of St. Petersburg, and the City of Tampa. TBW serves approximately 2 million customers.
B. SOBAC
7. SOBAC was incorporated as a Florida not-for-profit corporation in
February 2000. The stated mission of SOBAC is to protect the environmental quality of the bays, canals, and waterways of the Tampa Bay area, and to ensure drinking water for SOBAC members in the Tampa Bay area.
8. SOBAC was formed by a group of people residing primarily in the area of Apollo Beach. Apollo Beach is a waterfront residential community that was created by dredge and fill of wetlands, estuary, and bay bottom bordering the
"Big Bend" area of Tampa Bay, where the community terminates in a "hammerhead" of fill over what was once a seagrass bed. Across the North Apollo Beach
"Embayment," formed by the "hammerhead," is the discharge canal of TEC's Big
Bend power plant. A corrugated metal barrier partially separates the embayment
17 from the discharge canal. This discharge canal also will receive TBD's discharge after re-mixing with TEC's discharge.
9. SOBAC initially was formed out of concern for the environment in the
Big Bend area of Tampa Bay. However, there is no requirement that SOBAC members live in the Apollo Beach area, or even in the vicinity of Tampa Bay, and SOBAC's geographic area of concern has broadened somewhat beyond the Apollo
Beach area.
10. In order to become a member of SOBAC, one need only sign a card.
Prospective members are asked to donate $5 on signing up. Most members donate
$5 or more. However, the donation is not mandatory.
11. There is no requirement that members attend any meetings, or participate in any SOBAC activities. Section 3.1 of SOBAC's Constitution and
Corporate By-Laws makes "active" membership contingent on payment of "the prescribed [annual] dues." Section 3.2 of SOBAC's Constitution and Corporate
By-Laws requires SOBAC to establish annual dues, but no annual dues have been paid because no annual dues structure has ever been established. As a result, no annual dues have been "prescribed," and "active" membership does not require payment of annual dues.
12. SOBAC claims to have approximately 1,000 members. These include all those who have ever become members. Approximately 700 live in the Appollo
Beach area; approximately 50-75 of these members form the "core" of active members. Approximately 50-100 members live outside the Tampa Bay area; some of these outsiders probably are among the approximately 100 who are members by virtue of SOBAC's reciprocity agreement with another association called
"Friends of the River."
13. SOBAC has never surveyed its membership to determine how its members actually use Tampa Bay. However, the evidence was sufficient to prove that a substantial number of its members, especially among those who reside in the
Apollo Beach area, enjoy use of the waters and wetlands of the Big Bend area
18 for recreational activities such as boating and fishing. For that reason, if the activities to be permitted by DEP in these proceedings were to cause environmental damage, a substantial number of SOBAC's members would be affected substantially and more than most residents of distant reaches of the Tampa Bay area.
C. Background of Desalination Project
14. In 1998, the predecessor agency to TBW (the West Coast Regional
Water Supply Authority), the six Member Governments and SWFWMD entered into an agreement specifically addressing impacts to natural systems through the development of new, non-groundwater sources, and the reduction of permitted groundwater withdrawal capacity from TBW's eleven existing wellfields from the then permitted capacity of 192 million gallons per day (mgd) to 121 mgd by
December 31, 2002 (the "Partnership Agreement").
15. Pursuant to the Partnership Agreement, the existing water use permits for TBW's 11 specified wellfields were consolidated into a single permit under which TBW is the sole permittee. Prior to execution of the
Partnership Agreement, the existing permits for these 11 wellfields allowed for cumulative withdrawals totaling approximately 192 mgd. Upon execution of the
Partnership Agreement, the consolidated permit immediately reduced allowed withdrawals to no more than 158 mgd and required that wellfield pumping from the 11 wellfields be further reduced to no more than 121 mgd by December 31,
2002, and then to no more than 90 mgd by December 31, 2007. These withdrawal reductions are necessary to reduce the adverse environmental impacts caused by excessive withdrawals from the 11 wellfields, the majority of which are located in Pasco County.
16. In order to replace the reduction of groundwater withdrawals, TBW adopted a Master Water Plan that provides for the development of specified new, alternative sources of potable
19 water. The seawater desalination facility ("Desal Facility") is one of the cornerstone components of the Master Water Plan. This
Facility will furnish 25 mgd of new water resources for the Tampa
Bay area and must be in service by December 31, 2002, in order to meet the potable water needs of the residents of the Tampa Bay area.
17. In exchange for the groundwater withdrawal reductions, SWFWMD agreed to contribute up to $183 million towards the development of new water sources that are diverse, reliable and cost-effective. SWFWMD has agreed to co-fund up to 90 percent of the capital cost of the Desal Facility.
18. To comply with the terms and conditions of water use permits it has received from SWFWMD for other water withdrawals in the region, TBW must increase the water sources from which it withdraws water for distribution to its Member Governments in a timely manner. The Desal Facility is the essential means by which these permitting requirements can be met.
19. For the past two years, the Tampa Bay area has been experiencing historic low rainfall and drought conditions. The Desal Facility is supported not only by TBW and its Member Governments, but also by SWFWMD since it is a drought-proof source of supply which has the greatest ability of any new water supply source to allow TBW to meet its members' potable water supply needs while also reducing pumpage from the existing 11 wellfields.
20. In addition to its being a drought-proof source of potable water supply, the Facility will also provide diversity and reliability for TBW's sources of supply, and is a source that is easily expandable to provide additional potable supply that may be necessary in the future.
21. Prior to deciding to proceed with a desalination project, TBW conducted four separate studies to look at the potential individual and
20 cumulative impacts of a desalination facility on Tampa Bay and the surrounding areas, and in particular to evaluate the changes in baywide salinity due to the desalination discharge alone and in combination with the river withdrawals occasioned by other projects.
22. Commencing in 1997, TBW conducted a procurement process that culminated in the award in July 1999 of a contract to S & W Water, LLC, now known as Tampa Bay Desal, LLC, to design, build, own, operate, and eventually transfer to TBW a seawater desalination plant to provide potable water to
Hillsborough, Pinellas, and Pasco Counties and to the Cities of Tampa and
St. Petersburg for 30 years.
23. TBD's Desal Facility is co-located with the Big Bend Power Station owned and operated by TEC on the northeast side of Hillsborough Bay, in
Hillsborough County, Florida. By discharging the concentrate from the Desal
Facility to the power plant cooling water prior to its discharge to the power plant discharge canal, environmental impacts from the concentrate are minimized, and disturbance of the discharge canal is avoided. The costs avoided by utilizing the existing intake and outflow from the TEC power plant are reflected in the lower cost of the water to Tampa Bay Water, and ultimately its Member Governments.
24. TBW is contractually bound to TBD to purchase all of the potable water that is produced by the Desal Facility for distribution to its Member
Governments and to purchase the entire Facility in the future.
25. With the exception of the NPDES permit at issue, TBD has obtained all of the over 20 other permits which are required for the construction and operation of the desalination facility.
26. TBD has already invested approximately $20 million in this project.
The total estimated capital cost of the desalination facility is $110 million.
TBD has obtained financing of $42 million and expects to acquire permanent
21 financing in the month of October 2001. SWFWMD agreed to subsidize up to 90 percent of the capital cost of the desalination facility payable to TBW over the term of agreement with TBD.
27. TBD is contractually bound to TBW to complete and fully operate the desalination facility by December 2002.
D. TBD Desalination Process
Overview of Process 28. In the instant case, desalination is performed through reverse osmosis ("RO"), a mechanical process wherein pretreated water under very high pressure is pressed against a very fine membrane such that only pure water can pass through it. The vast majority of salt molecules and other substance are eliminated from the water. The RO process is not heat or chemical driven. No additional heat load is being added as a result of the desalination discharge, and the desalination plant will actually result in a reduced heat load to the bay.
29. The desalination facility will withdraw approximately 44.5 mgd of raw water from Units 3 and 4 of TEC's Big Bend cooling water system, produce approximately 25 mgd of product water for transmission to the regional water supply system, and discharge approximately 19.5 mgd of clarified backwash and concentrate water equally into each of the power plant cooling water tunnels for dilution and release into the discharge canal.
30. During abnormal power plant operations including times when Units 3 or 4 are not in operation and during the summer months when the normal supply water intake temperature exceeds the operating temperature range of the RO membranes, a portion of the source water will be withdrawn from an auxiliary supply water system. The auxiliary supply water system consists of a supply pump and pipeline that withdraws water from a location downstream of the fine- mesh screens for Units 3 and 4. The total combined bay withdrawal flow for the power plant and the desalination facility cannot exceed 1.40 billion gallons
22 per day ("bgd"). This limitation ensures that entrainment does not exceed the levels previously permitted for the site, and a new entrainment study pursuant to Section 316(b) of the Clean Water Act is not required.
Pretreatment Process 31. The desalination intake water is pretreated in a two-stage gravity filtration process with chemical additives. During pretreatment, ferric sulfates will be added to the desalination intake water to coagulate and capture suspended solids, organic material, and metals that exist in the raw water supply.
32. In this first stage of the pretreatment process, the intake water runs through an aerated course sand filter. Aeration enhances the coagulative process and assists in the capture of organics, suspended solids, and metals.
Aeration also occurs in stage two, which uses a fine sand filter pretreatment process. The backwash water from stage two recirculates to the stage one treatment process. The
pretreated waters exits through a five micron cartridge filtration prior to entering the RO process.
33. The aerated pretreatment filter backwash water from the pretreatment stage one pretreatment will be sent to a discharge sump for initial settling and then to a clarifier and filter press to remove excess water. Approximately 14 wet tons a day which includes organics, suspended solids, and metals that are removed through the coagulative process and captured from the gravity filters are removed off-site to a landfill.
34. The desal concentrate and clarified backwash water will be combined in a discharge sump or wet well prior to entering into a discharge line manifolded to equally distribute the concentrate discharge into all of the available cooling water outflow tunnels or conduits of the power plant discharge.
23 Reverse Osmosis Membrane Treatment 35. The RO desalination process consists of a two-stage pass of the pretreated water through the reverse osmosis membranes. The RO pumps will force the water through the RO membranes at pressures ranging from 600 to 1000 pounds per square inch (psi). As a result of the RO process, approximately 25 mgd of purified water, also known as permeate, will be produced for delivery to
TBW.
36. TBD anticipates cleaning its membranes twice per year, perhaps less, due to the high level of pretreatment. Periodic cleaning removes silt and scale from the membrane surface. Dilute solutions of citric acid, sodium hydroxide, sulfuric acid, sodium tripolyphosphate, or sodium dodecyclbenzene compromise the constituents of various cleaning solutions, with the actual cleaning solution used dependent upon the actual performance of the system once it is placed in operation.
37. Once the cleaning cycle is complete, the spent cleaning solution will be purged from the feed tank, membrane vessels, and piping and diverted into a scavenger tank for off-site disposal. Clean product water (permeate) will be fed to the feed tank and pumped into the RO membrane vessels. This process will continue until the pH of the purge water meets the Class III marine water quality criteria. The membranes will be rinsed with brine concentrate and permeate, and the rinse water will be directed to the wet well for discharge, with the concentrate into the TEC cooling water stream.
38. TBD determined the chemical characterization of the membrane cleaning solution discharge. Cleaning solutions are not discharged in detectable concentrations. As further assurance, the permit requires toxicity testing immediately after membrane cleaning.
Dilution of Discharge Water 39. Co-locating the desalination facility with TEC's Big Bend power station allows the desalination concentrate to be diluted with TEC's cooling water prior to discharge into Tampa Bay.
24 40. The point of injection of the desalination discharge will be located approximately 72 feet upstream of the point of discharge to the discharge canal to ensure complete mixing of the desalination concentrate with
TEC's cooling water. This provides reasonable assurance that the desalination discharge will be completely mixed within the cooling water conduits.
41. If all four TEC units are in operation and TBD is producing 25 mgd of finished water, the approximate dilution ratio of the desalination concentrate with TEC cooling water is 70:1. Historical TEC data indicates that a dilution ration of greater than 20:1 will occur more than 99.6 percent of the time, and a dilution ration of greater than 28:1 will occur more than 95 percent of the time. The dilution limitations in the proposed permit are more stringent than those required in Rule 62-302.530(18).
42. The permitted dilution ratio complies with Rule 62-660.400(2)(d) because it takes into account the nature, volume, and frequency of the proposed discharge, including any possible synergistic effects with other pollutants which may be present in the receiving water body. Comparisons of the Antigua,
Key West, and Cyprus facilities are not applicable because those
desalination facilities lack the initial dilution that will exist at TEC's Big
Bend site.
43. The proposed permit requires a 20:1 minimum dilution ratio at any given time, which may occur for no more than 384 hours per calendar year, and with the further limitation that the discharge at the 20:1 minimum dilution ratio shall not exceed 384 hours in any given 60-day period. At all other times, a minimum dilution ratio of 28:1 must be maintained.
44. To ensure proper dilution and system operation, computer instrumentation in the desal facility will interface with TEC to continuously monitor the operations of TEC's four cooling tower condenser units. If any of the pumps shut down, an alarm will sound at the desalination facility and the
25 computer system will automatically shut down the concentrate discharge to that specific condenser unit discharge tunnel. Further, the desalination plant will employ approximately 12 employees, with a minimum of two employees on duty at all times.
E. TEC Permit Modification
45. Big Bend power station has four coal-fired steam electric generating units. The power station is cooled by water that is taken in from
Tampa Bay through two intake structures which are located along TEC's intake canal. One intake structure feeds cooling water to electrical power units 1 and 2 and the other feeds units 3 and 4. After flowing through the condensers, the cooling flows are combined into four separate discharge tunnels which outfall into TEC's discharge canal. The intake structure for Units 3 and 4 is equipped with fine-mesh screens and an organismal collection and return system that has been approved for use by DEP.
46. The purpose of TEC's permit modification is to alter the internal piping in the facility to accommodate the desalination plant at the Big Bend site. TEC's permit modification allows for placement of an intake pipe from
TEC's cooling water pipes to the desalination plant and a return pipe downstream from the intake pipe for the return of the desalination concentrate to TEC's cooling water discharge tunnels prior to outfall in the discharge canal. TEC's permit modification also allows for the placement of an auxiliary intake line by TBD to take additional water from behind the intake of units 3 and 4 up to TEC's maximum permitted limit of 1.4 billion gallons a day. The
TEC proposed permit is conditioned to require TEC to maintain the structural integrity of both the steel sheet pile wall on the discharge canal and the breakwater barrier North of the discharge canal.
47. TEC's permit modification does not request any changes to the operations of the Big Bend Generating Station.
26 F. SOBAC Issues and Concerns
48. SOBAC raised numerous issues and concerns in its petitions in these cases and in the Pre-Hearing Stipulation. However, some issues were elimination by rulings adverse to SOBAC during prehearing proceedings and final hearing. Based on the evidence SOBAC sought to elicit at final hearing and issues raised in its Proposed Recommended Order, other, earlier SOBAC issues and concerns appear to have been dropped. Remaining are essentially the following: increased salinity due to TBD discharge; alleged decreased dissolved oxygen (DO) from higher salinity; impacts of higher salinity and alleged decreased DO on marine plants and animals; alleged release of metals from sediments due to higher salinity and alleged lower DO, and effects on marine plants and animals; alleged monitoring deficiencies; alleged failure to utilize available technologies to lower salinity and raise DO; alleged deficient financial assurances; and various alleged resulting DEP rule violations.
G. Description of Tampa Bay:
Physical Properties 49. The portion of Tampa Bay and Hillsborough Bay near the Big Bend facility is classified a Class III water body.
50. Tampa Bay is a naturally drowned river valley, meaning that a deep channel exists as a result of natural forces.
However, the channel has been deepened to 45 feet or greater to allow large ships to navigate the bay. This deepening of the channel increases the water flow of the head of the bay with the open gulf waters and allows this residual circulation to move more new water from the open Gulf of Mexico up into the bay.
51. Ordinarily, circulation moves salt water up Tampa Bay and spreads it out onto the flanks of the bay where it then mixes with the freshwater. To
27 complete this circulation, the water then flows back out towards the mouth of the bay, primarily along its flanks and shallower parts in the upper part of the water column. The water in Tampa Bay tends to flow faster in its deeper parts, both coming in and going out, and relatively slower in the shallow areas. The majority of flow of freshwater inflow occurs at the bay's flanks as can be seen very clearly in the salinity distributions.
Mixing and Stratification 52. Since the development of Tampa Bay from the 1880 condition to the
1972 and 1985 conditions, there is more mixing and exchange of water. Due to shoreline fills for development, such as Apollo Beach, there is less water that now comes in the bay than in the predevelopment condition.
53. Tampa Bay is a fairly well mixed system from top to bottom. This is because the action of the tides basically acts like a big mix master. The bay is fairly shallow, less than four meters in depth on average. The tidal velocities can be as strong as two knots or about a meter per second. When the strong velocity pushes through shallow water, there is extensive overturning, where the bottom water is churned to the top and gets mixed very efficiently.
That is very well seen in the observations during dry periods. Over 100 points in Tampa Bay were measured for temperature and salinity top, middle and bottom, and showed that they were very uniform throughout the bay.
54. During periods of large volumes of freshwater input into Tampa Bay, freshwater is pumping into the bay faster than the tidal mixing can mix it from top to bottom. Therefore, in parts of Tampa Bay significant stratification is seen during many times in the wet season. During those times when rainfall is not as prevalent, tidal mixing once again dominates and the bay returns to a more well mixed system. The average tidal fluctuation for Tampa Bay is a range of two to three feet.
Salinity 55. As the tide in Tampa Bay comes in, it brings saltier water from the mouth of the bay toward the head of the bay, causing salinities to rise. As
28 the tide recedes, bringing out fresher water from farther up the bay, salinities decrease. Over an individual tidal cycle, particularly during the wet season, a four or five part per thousand ("ppt") change in salinity will occur between a rising tide and a falling tide. During the dry season, tidal flushing is not as significant to salinity levels because not much difference exists in salinity from the head of the bay to the mouth of the bay. Even during the dry season, there is a one to two ppt change over a six to twelve- hour period in any given day.
56. During the dry periods in 1990, salinities elevated up to about 33 ppt, with very little stratification. During the rainy periods, in June and
July, salinities dropped rather drastically. In some areas, salinity dropped as low as to 20 to 22 ppt. However, in spite of these drastic seasonal differences, significant variation in salinity occurs as a result of tidal exchange.
57. The Big Bend area is split by the dividing line between
Hillsborough Bay and what has been classified Middle Tampa Bay. The salinity for Hillsborough Bay from 1974 through June 2001 at the surface ranges from 0.4 ppt to 38.2 ppt. The middle portion of the same water column contained a range from 2.5 ppt to 39.2 ppt, and the bottom portion showed a range from 3.9 ppt to
37.2 ppt. The average salinities during this time frame were as follows: top
24.2 ppt, middle 24.3 ppt and bottom 25.3 ppt. In the portion of Tampa Bay called Middle Tampa Bay, the surface level salinity ranged from 6.8 ppt to 38.2 ppt. At middle depth, salinities ranged from 7.4 ppt to 38.8 ppt. The bottom level salinities ranged from 11.9 ppt to 39.6 ppt. This is a large range of salinities.
Tampa Bay near the Big Bend Area 58. In the area near the Big Bend facility, the Mote Marine Laboratory survey data reflects that the salinity during May and June 2000 reached 33.4 ppt. Further, Mote Marine Laboratory data showed that the North Apollo
29 Embayment area salinities were well mixed vertically throughout the system.
The total volume of water exchanged into the North Apollo Embayment and associated canals during a mean tide is approximately 35 percent of the total volume of all water contained in that area. This tidal exchange occurs twice per day.
59. The double diffusion process does not create high salinity in the bottom of the water column in the North Apollo Embayment. The double diffusion process, without any external influence, would lead to both surface and bottom layers of the water column reaching salinity equilibrium. Further, the turbulent mixing that occurs due to tidal processes and wind-induced mixing dominates over the double diffusion process.
60. The Mote Marine Laboratory study conducted between May and early
June 2000 did not detect any significant salinity stratification in the area near the Big Bend facility. Vertical stratification of salinity does occur but typically only during the periods of significant freshwater inflow and not in extreme drought or dry conditions. None of the Mote Marine Laboratory data detected any pockets of high salinity water or significant density stratification in the North Apollo Embayment.
Estuarine Characteristics 61. Tampa Bay is an estuary. Estuaries are semi-enclosed bodies of saltwater that receive freshwater runoff from drainage or riverine inflow, which measurably dilutes the salinity levels in the estuary. As a result, salinity levels in estuaries typically are highly variable, ranging from 0 ppt where rivers flow into estuaries, to as high as 40 ppt under conditions of low freshwater input or at estuarine mouths where they connect to the sea. There are naturally occurring dissolved oxygen levels below 4.0 mg/l in parts of
Tampa Bay, including at Hillsborough County Environmental Protection Commission
("EPC") monitoring stations 9, 80, and 81, which are the closest stations to the proposed discharge. Dissolved oxygen in the bay decreases at night because
30 photosynthesis ceases and respiration exceeds production. Other environmental parameters are also highly variable in estuaries. Therefore, the organisms that inhabit estuaries have adapted to tolerate these highly variable conditions.
62. Estuarine organisms have adaptive means for tolerating changing salinity levels, either by conforming their internal salinity levels to the ambient salinity levels, or by actively regulating their internal salinity levels by intake or excretion of salt. Organisms that are adapted to tolerate a wide range of salinities within the estuary are termed euryhaline organisms.
Essentially all of the common organisms in estuaries, including the Tampa Bay estuary, are euryhaline organisms, and therefore are capable of tolerating and living in a wide range of salinities and salinity changes that occur due to tidal, meteorological, and other natural forces in the estuarine environment.
63. Extensive baseline biological studies performed on Tampa Bay reveal that the most common species in the Tampa Bay estuary tolerate salinity levels ranging from 5 ppt to 40 ppt.
Seagrasses 64. Five species of seagrass inhabit Tampa Bay. Seagrasses are photosynthetic underwater flowering plants that are typically limited in occurrence and distribution by the water clarity. This limits the depth at which seagrasses can grow. In Tampa Bay, seagrasses are limited to the fringes of the Bay, and are largely limited to depths of approximately three feet, although they can live in depths of up to six feet in clearer parts of the Bay.
65. Seagrasses are very sensitive to increases in nutrients, like nitrogen and phosphorus. These nutrients encourage algae growth, resulting in competitive stress in seagrasses. Due to poor water quality caused by sewage discharge, dredging and filling, and other activities in the Bay, seagrass distribution in Tampa Bay decreased from an historic coverage of approximately
80,000 acres in 1950 to approximately 20,000 acres by 1982. Improvements in
31 water quality, largely due to sewage treatment improvements, have allowed seagrasses to naturally recolonize to approximately 27,000 acres coverage, as of 1994.
66. Wave energy affects seagrass distribution. Seagrasses cannot colonize and survive in areas subject to significant wave energy. For example, the portion of Tampa Bay dredged and filled to create the Apollo Beach
"hammerhead" area was once comprised of a broad shallow-water shelf that diminished wave energy, allowing dense seagrass flats to cover the shelf area.
Destruction of the broad shallow-water shelf with fill to create the Apollo
Beach hammerhead has converted the area to a high wave energy system that is unsuitable for seagrass colonization and growth. Consequently, the only seagrasses inhabiting the Big Bend area are found approximately one kilometer north of the Big Bend power plant, in an area known as "The Kitchen," and approximately one kilometer south of the Apollo Beach hammerhead area.
Additionally, there are ephemeral patches of seagrass inhabiting some limited areas of the North Apollo Embayment.
67. Seagrasses are adapted to tolerate a wide range of salinities.
They have specialized cells that enable them to deal with salt stress and with broad ranges of and fluctuations in salinity. These adaptations enable them to survive and thrive in estuarine environments.
68. Of the seagrass species that live in Tampa Bay, one species, Ruppia maritima (widgeon grass), occurs in salinity ranges from zero to 40 ppt.
Manatee grass, Syringodium filiforme, is most productive in salinities between
5 ppt and 45 ppt. The other three species, Halodule wrightii (shoal grass),
Halophila engelmannii (star grass), and Thalassia testudinum (turtle grass), tolerate salinity ranges from approximately 5 ppt to 60 ppt. Seagrasses better tolerate higher salinity levels than lower salinity levels. Lower salinity levels are usually indicative of increased stream and land freshwater runoff, which usually is accompanied by increased turbidity and lower water clarity.
32 69. Four of the five seagrass species that inhabit Tampa Bay typically reproduce asexually by producing rhizomes, rather than by flowering and producing seeds. It is not completely clear why seagrasses in Tampa Bay reproduce asexually rather than by flowering and seed production. However, recent research indicates that climatic temperature is the controlling factor for flower and seed production. In South Florida, where the climate is warmer, seagrasses reproduce by flowering and seed production. In Tampa Bay, the lower winter temperatures appear to be the limiting factor with respect to successful flower and seed production in seagrasses. Recent studies by the University of
South Florida ("USF") marine laboratory indicate that naturally occurring fungal diseases may also limit successful flowering and seed production in seagrasses in Tampa Bay.
70. Since most seagrass species that live in Tampa Bay tolerate and thrive in salinities of up to 60 ppt, the higher salinity levels in the estuary do not appear to adversely affect the ability of seagrasses to reproduce. In fact, the lower salinity levels, below 5 ppt, stress seagrasses and are more likely to adversely affect reproduction than do higher salinity levels.
Mangroves 71. Three major species of mangrove inhabit the Tampa Bay area: the red mangrove, black mangrove, and white mangrove. Mangroves inhabit the intertidal area, so they are subjected to daily tidal flooding and drying.
Consequently, they must
tolerate a wide range of variability in salinity levels and in water availability.
72. Most mangroves tolerate soil salinity levels up to 60 ppt, close to twice the salinity of Tampa Bay. Mangrove mortality due to salinity does not occur until soil levels approach and exceed 70 ppt salinity. Mangroves are also adaptable to, and inhabit, freshwater environments.
33 Phytoplankton and Zooplankton 73. Plankton are life stages or forms of larger organisms, or organisms that have no ability for major locomotion, so they spend their entire life spans floating and drifting with the currents. Plankton are extremely productive in that they reproduce in very large numbers within very short life spans.
74. Holoplankton are planktonic organisms that spend their entire lives in planktonic form. Examples include diatoms, which are a type of phytoplankton, and copepods, which are a type of zooplankton. Meroplankton are
"temporary" plankton that drift with the currents in juvenile or larval stages, then either settle out of the water column and metamorphose into an attached form (such as barnacles) or metamorphose into mobile life forms (such as crabs, shrimp, and fish species).
75. Phytoplankton are planktonic plant species and life forms. Zooplankton are planktonic animal species and life forms.
Zooplankton feed on phytoplankton. There are approximately 300 species of phytoplankton, and numerous species and forms of zooplankton, found in Tampa Bay.
76. Most phytoplanktonic and zooplanktonic species inhabiting Tampa Bay are euryhaline species capable of tolerating the wide range of salinity levels and abrupt salinity changes that occur naturally in the estuarine system. Most phytoplanktonic and zooplanktonic species and life forms in Tampa Bay tolerate salinity levels ranging from zero to 40 ppt. They appear to be more tolerant of the higher end than the lower end of this salinity range.
Manatee 77. The manatee is the only endangered or threatened species identified by the Florida Natural Areas Inventory as inhabiting the area where the desalination plant is proposed to be located. Manatees congregate at the Big
Bend Power Station during colder months because they are attracted to the power
34 plant's warmer water discharge. Manatees are considered to be estuarine species, but they have very broad salinity tolerance ranges. They migrate into and out of freshwater springs, through estuaries, into the Gulf of Mexico, and down to the Ten Thousand Islands, where hypersaline conditions frequently exist. Manatees routinely expose themselves to and tolerate salinities ranging from zero to more than 40 ppt.
Fish 78. The fish populations in Tampa Bay are comprised of a large number of marine euryhaline species. Due to their ability to osmoregulate their internal salinity levels, these fish species can inhabit salinity ranges from 5 ppt to as high as 40 ppt. Extremely extensive monitoring and sampling programs are currently being conducted in Tampa Bay and specifically in the vicinity of the Big Bend Power Station. The Hillsborough County EPC, SWFWMD, TBW, the
United States Geological Survey ("USGS"), the Florida Marine Research
Institute, USF, and Mote Marine Laboratory conduct separate biological monitoring programs that sample and monitor numerous biological parameters, including invertebrate infaunal and epifaunal species composition, abundance, and distribution; zooplankton and phytoplankton species composition, abundance, and distribution; emergent and submerged vegetation species composition, abundance, and distribution; and fish species composition, abundance, and distribution. These monitoring programs, which collect and analyze biological data from many areas in the Tampa Bay estuarine system, extensively monitor numerous biological parameters in the Big Bend area.
H. Testing and Modeling
Pilot Plant 79. Although DEP's rules do not require the use of a pilot plant to demonstrate reasonable assurances, TBD installed a desalination pilot plant at
35 the Big Bend site in November 1999. The pilot plant matched the hydraulics and configuration of the full-scale facility on a 1/1000 scale. The pilot plant used water from the Big Bend power plant discharge as its source water.
80. The purpose of the pilot plant was to confirm design requirements for the desalination facility and to provide samples of intake water, filtered water, pretreated water, concentrate, and finished water to use for chemical characterization and analysis.
81. Using a pilot plant is superior to using data from engineering projections or data from a different desalination facility because the pilot plant provides data specific to the Big Bend site. Data from the pilot plant were used to establish various effluent and other limits in the permit.
Chemical Characterization 82. Intake water, filtered water, pretreated water, concentrate, and finished water from the pilot plant were analyzed for over 350 parameters chosen by DEP to determine chemical characterizations and water quality.
83. The pilot plant operation provides extensive chemical characterization of intake and discharge water composition and mass loading.
This information was key in providing accurate information on the chemical composition and mass loading of the desalination discharge concentrate. With this accurate information on the components in the discharge water, DEP was provided more than sufficient reasonable assurance on the potential effect of the chemical components of the discharge.
84. TBD tested the pilot plant discharge water for copper, nickel, other heavy metals, and those chemical constituents specified on the DEP chemical characterization form. The chemical characterization tested for concentrations of constituents based on a 12.8 to 1 dilution ratio, and even at that dilution ratio, did not exceed any of the state water quality parameters.
However, to provide additional assurance that there will not be an exceedance
36 of state water quality standards, the permit requires a minimum 20 to 1 dilution ratio.
Dissolved Oxygen Saturation Testing 85. Temperature and salinity affect the saturation point of dissolved oxygen ("DO") which is lowest when temperature and salinity are highest. DO saturation charts, which are typically used to determine DO saturation points, are not applicable because those charts do not contain the saturation point of
DO at a temperature of 109 degrees Fahrenheit and a salinity of 79 ppt, which represents the worst case conditions for the proposed desalination facility.
Bench-scale testing was performed on the undiluted desalination discharge from the pilot plant by heating discharge concentrate samples to 109 degrees
Fahrenheit and aerating the samples until the DO stabilized and reached saturation point. The pilot plant bench-scale testing determined that the saturation point of DO in the worst case desalination concentrate using a temperature of 109 degrees Fahrenheit and salinity of 79 ppt was 5.7 mg/l.
Toxicity Testing 86. TBD conducted acute toxicity testing using a worst case scenario assuming a diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. Acute toxicity testing evidenced no mortalities, showing that the proposed discharge will not be a source of acute toxicity.
87. TBD conducted chronic toxicity testing on raw concentrate from the pilot plant using a worst case scenario diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. The No
Observed Effect Concentration (NOEC) for raw concentrate was determined to be
100 percent and the NOEC for diluted effluent was determined to be greater than
100 percent. The evidence did not explain these concepts, but it was clear from the tests that the proposed discharge will not be a source of chronic toxicity.
37 88. TBD conducted its acute and chronic toxicity testing using protocols reviewed and approved by DEP. TBD's toxicity testing was also consistent with accepted EPA standards.
Assessment of Potential Environmental Impacts 89. TBD prepared an Assessment of Potential Environmental Impacts and
Appendices ("Assessment") to analyze the potential biological impacts of the desalination plant discharge into the Tampa Bay estuary. The Assessment examined numerous physical parameters to determine the baseline environmental conditions in the portion of Tampa Bay proximate to the proposed desalination plant site. Among the physical parameters examined in determining the baseline environmental conditions were: salinity; sediment size and composition; metal content in sediments; and numerous water quality parameters such as transparency, biochemical oxygen demand, pesticides, dissolved metals, and pH.
Consistency with SWIM Plan
90. As part of the permitting process, TBD was required to demonstrate consistency of the proposed desalination discharge with the SWFWMD's Surface
Water Improvement and Management (SWIM) plan, pursuant to Rule 62-4.242. TBD submitted an extensive SWIM consistency analysis, which is sufficient to meet the consistency requirement.
Water Quality Based Effluent Limitation Level II Study
91. TBD performed a Water Quality Based Effluent Limitation (WQBEL)
Level II study pursuant to Rule Chapter 62-650 for the purpose of determining the effect of the desalination plant discharge on salinity levels in the vicinity of the desalination plant discharge. TBD had the Danish Hydrologic
Institute ("DHI") use the data collected through the WQBEL Level II study in its near-field model of the Big Bend area. See Findings 105-117, infra. DEP also used the data and the DHI model results to establish the salinity and chloride effluent limitations in the permit.
38 The USF Far-Field Model
92. The far-field model was prepared utilizing the Princeton model code. The Princeton model is well recognized and is generally accepted in the scientific community.
93. The goals of the TBD far-field model performed through USF by Dr.
Luther and his team were to evaluate the change in bay-wide salinity due to the desalination plant discharge, both alone and in combination with changes in salinity due to enhanced surface water system withdrawals under new consumptive water use permits issued to TBW by SWFWMD to provide other, additional sources of needed potable water supply. The primary goal was to provide DEP with the best science possible of the potential real effects of this desalination discharge into Tampa Bay.
94. The modeling system of Tampa Bay utilized in this analysis was developed beginning in 1989. Dr. Luther and his team have continued to make refinements to the model over the last 12 years. Dr. Luther took the modeling system he had developed over the years for Tampa Bay and did three primary model scenarios. The baseline case reproduced the observed conditions during the 1990 and 1991 years--a very dry period in 1990 and a fairly wet period for
1991--as accurately as possible with all the boundary conditions estimated from observations. This was to capture an entire range of conditions in Tampa Bay.
The baseline was then compared with validation data and other observations to ensure it was approximating reality.
95. The second simulated scenario included the same effects as the baseline with the added effect of the desalination intake and discharge at the
Big Bend facility. The third case approximated cumulative effects from the TBW enhanced surface water system river withdrawals according to the proposed permit withdrawal schedules. For each test case, it was assumed that only two of the four cooling units at the TEC Big Bend plant were in operation for an
39 entire two-year period, a worst-case scenario expected to occur less than four percent of the time in any given year.
96. The model included data on water levels, temperature, and salinity throughout Tampa Bay. In addition, it takes into account wind blowing across the surface of Tampa Bay, rainfall, freshwater inflow from rivers, and other surface water and groundwater sources. The model was calibrated and validated against actual data to verify simulation of reality as closely as possible.
97. The model was calibrated and validated utilizing Hillsborough
County EPC and Tampa Oceanographic Project ("TOP") salinity data. Physical
Oceanographic Real Time System ("PORTS") and TOP data on current flow velocity and water levels were utilized to calibrate and validate water levels and current. The acoustic doppler current profilers used in the model study are able to measure the speed at which the water is traveling and the direction at various levels above the bottom within the water column.
98. The TBD far-field model very accurately reproduces the observed tidal residual velocities observed with the acoustic doppler current profilers.
The far-field model reflects any stratification that would occur during the model simulations.
99. The far-field model simulates recirculation that occurs between the discharge and intake water. Recirculation is small due to the model's use of the actual bathymetry of Tampa Bay. There are significant shoals and other features that separate the water from the discharge and the intake canal that preclude significant recirculation most of the time.
100. After submitting the far-field model report to DEP, further study was performed on the far-field model that calculated residence time for Tampa
Bay. One study dealt with "residence" or "flushing" time. The concept of
"residence time" is not well-defined; put another way, there are many different accepted ways of defining it. It may be defined in a simplified manner as the time it takes a patch of dye to flush out of the bay. However, for purposes of
40 the studies performed on the far-field model, theoretical "particles" in model grids were tracked, and "residence time" was defined as the time it would take for the number of particles initially in a grid cell to decrease to 34 percent of the initial number. Using this approach and definition, residence time in the vicinity of the Big Bend facility on the south side where the discharge canal is located was less than 30 days. Immediately offshore of the area of the discharge, the residence time reduced to less than 15 days. The study indicated that the area of the Big Bend facility has a relatively low residence time.
101. In the model's baseline run (for the desalination plant impacts only), maximum differences in salinity occurred during the month of April 1991.
Throughout the two-year time period, the maximum concentration of salinities did not increase from this point, and in fact decreased. The maximum average value for salinity difference is 1.3 ppt at the grid cell located directly at the mouth of the TEC Big Bend discharge canal. More than two grid boxes away in any direction and the value falls to less than 0.5 ppt increase in salinity.
The maximum salinity of any given day for the far-field model was in the range of 2.1 to 2.2 ppt, which compares favorably with the DHI near-field model which showed an increase of 2.5 ppt. The salinity changes caused by the cumulative effects scenario are smaller than the natural variability during the wetter months in Hillsborough Bay in cells immediately adjacent to the concentrate discharge.
102. Increases in salinity will occur in the vicinity of the discharge canal but will be very localized and small relative to the natural variability in salinity observed in Tampa Bay. At a distance of more than a few hundred meters from the mouth of the discharge canal, it would be difficult (if not impossible) to determine statistically that there would be any increase in salinity from the desalination concentrate discharge.
41 103. Over the two years modeled, there is no trend of increasing salinity. No long-term accumulation of salt is evidenced within the model.
Further, no physical mechanism exists within the real world that would allow for such a long-term accumulation of salinity in Tampa Bay.
104. Dr. Blumberg's independent work verified the conclusions in the far-field model constructed by USF. Dr. Blumberg's estimated flushing times are consistent with those found in the far-field model.
DHI Near-Field Model
105. The TBD near-field model was prepared by DHI. DHI prepared a three-dimensional near-field model to describe the potential salinity impacts from the discharge of the proposed desalination plant. The DHI model is a state-of-the-art model whose physics are well documented. By model standards, the DHI near-field model is a high resolution model. The DHI model essentially
"nests" within TBD's far-field model.
106. The near-field area includes those areas that would be directly influenced by the combined power and desalination discharges, the North Apollo
Embayment and the residential canal system adjacent to the discharge canal.
107. The near-field model was designed to determine whether or not the desalination plant would cause continuous increases in salinity and to predict any increase in salinity in the North Apollo Embayment and the associated canal system. In addition, DHI evaluated the potential for saline recirculation between the discharge and the intake via short circuiting due to overtopping of the existing break water.
108. In order to construct the near-field model, existing data on bathymetry, wind sources, meteorology and other parameters were examined and analyzed. In addition, the information from an intensive data collection effort by Mote Marine Laboratories on current velocities, temperatures, and salinities was incorporated into the model. TBD conducted bathymetric surveys
42 in the residential canal areas, the North Apollo Embayment, and the area between the discharge canal and the intake canal.
109. The model has a vertical structure of six grids and reflects vertical stratification that would occur in the system being modeled. The vertical grids in the model can detect a thermal plume one meter in depth (the size of the thermal plume from TEC's discharge). Information about the TEC thermal plume was incorporated into the model and utilized to calibrate the model's predictive capabilities. The model took into account interactions between the temperature plume and the salinity plume. The model predictions matched the measured temperature plume created by the TEC discharges quite well.
110. The near-field model conservatively assumed a scenario in which only the two TEC units with the smallest total through-flow of 691.2 million gallons a day cooling water were active. DHI then assumed production of a maximum 29 mgd in product water. A salinity level of 32.3 ppt at the intake was utilized in the simulation. The model assumed a conservative wind condition which results in less mixing and dispersion of the plume. Further, wind direction tended to be from the southwest or west during the simulation, which tends to push the plume against the TEC break water which tends to reinforce recirculation. SOBAC witness Dr. Parsons agreed that these simulations for
April and May 2000 constituted extreme conditions.
111. DHI ran its model for a total time period of six weeks. The "warm up" for the simulation took place from April 15 to May 7, followed by the
"calibration" simulation from May 8 to May 22. An additional validation sequence was run from May 25 to June 8. The production run was defined as the three weeks from May 8 to May 29, 2000.
112. The intensity of the calculations performed in the near-field model due to its high spacial resolution and numeric restrictions make it computationally demanding. The calibration runs took approximately a week to
43 10 days to run on a state-of-the-art computer. From a computational standpoint, it is not practical to run the near-field model for a two-year time period.
113. The model shows good agreement between its water levels and current velocity to observed data. The model reflects the recirculation of the discharge water that would occur in the system.
114. The maximum salinity for the extreme case scenario in the near- field model is an increase in salinity of 2.5 ppt. With three condensers running, under the modeling scenario comparing the base condition to the desal discharge, there is a maximum difference of only 2.0 ppt. Further, there is no indication of any continuous build up of salinity in the near-field area due to the desalination plant discharge.
115. DHI performed many sensitivity runs on the model, including one which examined rainfall conditions. The results of a two-inch rainfall analysis show that rainfall profoundly freshens the water in the near-field area.
116. Since the modeling was done in a time period of extreme drought, with no freshwater inputs, the ambient or background salinity trended up over the time frame of May through June. As with any estuary, if freshwater inflow is removed, the estuary will get saltier until freshening occurs. Even with the model simulation period extended an additional 10 days beyond that reflected in TBD Ex. 1-O, the model results did not show any increase of salinity differences caused by the desal facility above 2.5 ppt.
44 117. Based on data from field collections, the operation of the desal plant under worst case conditions did not exceed the assimilative capacity of the near-field environment. A 10 percent salinity change (3.23 ppt) was not reached in any grid cell.
The Blumberg Study
118. The "Environmental Impact Assessment for a Seawater Desalination
Facility Proposed for Co-Location with the Tampa Electric Company Big Bend
Power Generation Facility Located on Tampa Bay, Florida" authored by Norman
Blake and Alan F. Blumberg ("Blumberg Study") is a hydrodynamic model study combined with an analysis of potential biological effects. The Blumberg Study was performed at the request of and presented to the Board of County
Commissioners of Hillsborough County, Florida.
119. Dr. Blumberg's model used 1998 and 1999 as its baseline, which consisted of an extremely wet year followed by an extremely dry year. The model assumed a scenario of two cooling units in operation pumping 656 mgd of discharge flow. The results of the Blumberg Study are very similar to the results of TBD's far-field model. In addition, the model ran for a 9-year period without any sign of ongoing build-up of salinity. After the two-year model run, the second year ran for an additional 7 simulated years for total model simulation period of 9 years. The Blumberg Study found salinity only increased by 1.4 ppt in the North Apollo Beach Embayment. In fact, the
Blumberg Study showed no salinity build-up after the second year of the 7-year portion of the model simulation.
120. The Blumberg Study found that the flushing time for the area near the Big Bend facility ranges from 4 to 10 days.
121. The Blumberg Study applied a formula to predict potential DO saturation level changes. The analysis concluded a small change to DO saturation assuming full saturation on average of 7 mg/l. The Blumberg Study
45 predicted that the desalination discharge would not lower actual DO levels below 5 mg/l. The Blumberg Study concluded that the marine ecology will not be affected by the desalination facility operation.
Older Two-Dimensional Models of Tampa Bay
122. Significant strides have been made in hydrodynamic modeling over the last 10 years, with the standard changing from two-dimensional models to three-dimensional models. Three-dimensional models provide more complete results than two-dimensional models.
123. In the late 1970's through the late 1980's, modeling was constrained by the computing limitations of the time and could not examine the difference in water layers in a bay and potentials for currents going in different directions or speeds in different layers of the bay, as now done by state-of-the-art three-dimensional models.
124. A two-dimensional model cannot accurately represent the tidal residual circulation in an estuary such as Tampa Bay, because it omits some of the critical physical forces that drive this type of flow. As the acoustic doppler current profiler showed, water flows in the top of the water column in one direction and flows in the bottom of the water column in a different direction. A two-dimensional model would average these flows over the entire vertical water column. In doing so, it would show much slower residual flow
(and, therefore, longer residence time and a longer time to flush the system).
125. SOBAC offered the testimony of Dr. Carl Goodwin, a civil engineer with the USGS. Dr. Goodwin provided testimony on two-dimensional model studies he did for the USGS in the late 1980's to assess the effects of dredging the shipping channel in Tampa Bay. Dr. Goodwin's studies, contained in SOBAC Exs.
69 and 70, suggested the existence of "gyres" in Tampa Bay. But no "gyres" have been observed, and it now appears that these gyres actually do not exist but are two-dimensional modeling artifacts, as shown by state-of-the-art three-
46 dimensional modeling of Tampa Bay. In an earlier version of Dr. Luther's Tampa
Bay model, an experiment was performed running the model in a vertically average mode to mimic the two-dimensional model. In this mode, the model was able to reproduce the "gyres" that Dr. Goodwin observed in his two-dimensional model. When the physical equations that related to pressure forces
(baroclines) were reactivated in the three-dimensional model, the "gyres" disappeared.
126. In addition, this experiment showed that the two-dimensional model simulation showed residence times an order of magnitude longer as compared to the full three-dimensional simulation. This means that residence time would be
10 times longer in the two-dimensional model than in the three-dimensional model, which takes into account baroclinic forces.
127. Subsequent to the publication of his modeling studies
(SOBAC Exs. 69 and 70), Dr. Goodwin found that it would take approximately 110 days for water to travel from the mouth of the
Hillsborough Bay to the mouth of Tampa Bay in 1985. This calculation by Dr. Goodwin was not subjected to peer review or the
USGS process. However, dividing the 110-day time period with correction factor of 10 discussed above, Dr. Goodwin's corrected estimate would predict an 11-day period for transport of water from Hillsborough Bay to the mouth of Tampa Bay--similar to the
Blumberg Study and far-field model results.
Opinions of Other SOBAC Experts
128. Besides Dr. Goodwin, SOBAC also elicited some general opinions regarding the combined thermal and salinity plume from Dr. Mike Champ, called as an expert in the areas of environmental biology and chemistry, and from Dr.
47 Wayne Isphording, called as an expert in sedimentology and geochemistry. In part, Dr. Champ based his opinion on a misunderstanding that Tampa Bay is not well-mixed or well-circulated at the location of the Big Bend power plant. In this respect, Dr. Champ's testimony was contrary to all the evidence. Even the
"gyres" suggested by Dr. Goodwin's two-dimensional model studies would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant. To the extent that the opinions of Dr. Champ and Dr. Isphording differed from the modeling results, they are rejected as being far less persuasive than the expert opinions of the modelers called by TBD, who spent far more time and effort studying the issue.
I. Compliance with Dissolved Oxygen Standard
129. Oxygen is a gas which can dissolve in water to some degree. There are two measurements of DO in water: saturation point and actual level. The saturation point of DO in water equates to the maximum amount of DO that water will hold. The actual level of DO is a measurement of the oxygen in the water.
Since the saturation point is the maximum amount of DO that water will hold in equilibrium, the actual level of DO in water is typically equal to or lower than the saturation point.
130. Desalination will affect the saturation point of DO to the extent that it increases salinity. Increased salinity decreases the saturation point of DO because it lowers the potential for water to hold oxygen. But desalination would not affect the actual level of DO in the water if the saturation point remains above the actual level of DO in the water.
131. TBD determined that in the worst case scenario using undiluted desalination discharge, the lowest possible saturation point of DO would be 5.7 mg/l. If the actual level of DO is above 5.7 mg/l, desalination may lower that actual level of DO to 5.7 mg/l. If the actual level of DO is below 5.7 mg/l, desalination will not lower the DO. Since TBD will aerate the water in the
48 pretreatment process, if the actual level of DO is below 5.7 mg/l, the actual level of DO in the discharge water will be increased.
132. The permit DEP proposes to issue to TBD requires that DO at the point of discharge from the RO plant meet the following: that instantaneous DO readings not depress the intake DO when intake DO is at or below 4.0 mg/l, and that they be greater than or equal to 4.0 mg/l when intake DO is greater than
4.0 mg/l; that 24-hour average readings not depress the 24-hour average intake
DO when the 24-hour average intake DO is at or below 5.0 mg/l, and that they be greater than or equal to 5.0 mg/l when the 24-hour average intake DO is greater than 5.0 mg/l.
133. The evidentiary basis for SOBAC's argument that the proposed permit's DO limitation allowed violations of state water quality standards was the testimony of Dr. Champ. But it was evident from his testimony that Dr.
Champ was not even aware of the effluent limitations until they were pointed out to him at final hearing. Nonetheless, and although Dr. Champ barely had time to read the DO limitations, Dr. Champ immediately opined that the proposed
DO limitations virtually invited water quality violations. He dismissed the permit language out-of-hand as being "loosey-goosey," "fuzzy-wuzzy," and
"weasel-like." Actually, there is no conflict between the proposed permit's DO limitations and the water quality standards and water quality criteria in DEP's rules.
134. Other witnesses, particularly Tim Parker of DEP, properly compared the language in the permit with DEP's rules containing water quality standards and water quality criteria. Mr. Parker pointed out that the rules must be read in harmony with each other. Rule 62-302.530(31) contains DO water quality criteria and requires that the "actual DO shall not average less than 5.0 in a
24 hour period and shall never be less than 4.0." Rule 62-302.300(15), a water quality standard, states:
49 Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having a water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions.
Mr. Parker testified that the "natural conditions" referred to in Rule 62-
302.300(15) are those found in the intake water to the desalination facility.
135. TBD will not violate either the water quality criteria or the water quality standard for DO. If the actual level of DO in the intake water is less than 5.0 mg/l, TBD will not decrease the actual level of DO in the water below
5.0 mg/l because the actual level of DO is below the worst case saturation point of 5.7 mg/l. The water quality standard in Rule 62-302.300(15) does not prohibit discharges having DO levels below 4.0 mg/l when that discharge does not cause or contribute to existing DO violations. TBD will not cause or contribute to existing DO violations because if the level of DO in the intake water which is the natural condition is less than 4.0 mg/l, TBD will not decrease the actual level of DO in the water. To the contrary, the desalination process will increase the actual level of DO whenever it is below
5.0 mg/l.
136. TBD has provided reasonable assurance that the proposed desalination discharge will not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62-
302.300(15) because the desalination process will not decrease the actual level of DO below 5.0 mg/l.
137. SOBAC argued that DO levels will drop between intake and discharge as a result of desalination. Some of this argument was based on the testimony of Dr. Mike Champ, one of SOBAC's expert witnesses. But Dr. Champ's testimony on this point (and several others) is rejected as being far less persuasive than the testimony of the expert witnesses for TBD and the other parties. See
50 Finding 196, infra. SOBAC's argument apparently also was based on a fundamental misapprehension of the results of the Blumberg Study, which SOBAC cited as additional support for its argument that desalination will decrease DO at the discharge point. The Blumberg Study only spoke to desalination's effect on DO saturation concentrations, not to its effect on actual DO levels. (In addition, contrary to SOBAC's assertions, the Blumberg Study did not model DO saturation concentrations but only inferred them.)
J. pH
138. The pilot plant measured and analyzed the potential for pH changes in the desalination process and demonstrated that the desalination process reduced pH by no more than a tenth of a pH unit. pH ranges in natural seawater from top to bottom change over one full pH unit; a tenth of a pH unit change would be well within the natural variation of the system.
139. TBD has provided reasonable assurances that the proposed desalination discharge will not violate Rule 62-302.530(52)(c), which requires that pH shall not vary more than one unit above or below natural background of coastal waters, provided that the pH is not lowered to less than 6.5 units or raised above 8.5 units. Limitations for pH in the permit ensure compliance with Rule 62-302.530(52)(c) at the point of discharge to waters of the state.
K. Temperature
140. Nothing in the desalination process adds heat to the discharged water. To the contrary, the desalination process may dissipate heat due to the interface of the intake water with the air surface in the pretreatment process.
Further, the effect of removing 25 mgd of heated cooling water as desal product water reduces the heat load coming out of the TEC plant cooling water discharge by that same 25 mgd. Temperature readings taken as part of the pilot plant study confirm a slight decrease in temperature across the desalination process.
L. Metals
51 141. The pretreatment process employed by TBD will result in a reduction in metals in the treated water. Ferric sulfate is added to the intake water upstream of the sand filters in the pretreatment process to precipitate metals into solid material which can be captured by the sand filters. Adding ferric sulfate in the pretreatment process results in a net reduction in the total mass load of metals in the discharge water.
142. Initial calculations in the permit application that 104 pounds of ferric sulfate were being discharged in the desalination concentrate were based on using 20 mg/l of ferric sulfate and a conservative estimate of 95 percent settling of solids, with 5 percent of the ferric sulfate being discharged in the desalination concentrate. Further testing through the pilot plant revealed that coagulation optimizes at 9 to 14 mg/l of ferric sulfate with 97.5 percent of the solids settling, resulting in only 2.5 percent (52 pounds) of the ferric sulfate being discharged per day. The desal facility discharge of iron is minute in comparison to naturally occurring metals within the surface water flowing into Tampa Bay from the Hillsborough and Alafia Rivers.
143. Increases in iron due to ferric sulfate addition are predicted to result in a diluted discharge in which the iron level is still below Class III marine surface water limitation of 0.30 mg/l. Even SOBAC witness Dr.
Isphording confirmed that there are no concerns caused by metals that TBD is adding during the process.
Discharge Effect on Metal Absorption/Desorption
144. Dr. Isphording limited his concerns to the reaction of higher salinity, DO, and redox to the sediments already contained within the area beyond the discharge point. Dr. Isphording admits that he cannot quantify what the potential release of heavy metals would be due to these factors.
145. Absorption of metals occurs when an organic or clay particle attracts to its surface a metal. Biota do not obtain metals if the metal is
52 held in sand or silt size particles. Biota, be they plant or animal, in most cases obtain the metals they receive from tiny particles that are suspended in the water called microparticulate material. Microparticulate material is generally referred to as colloidal phase. Typically, this phase is on the order of a tenth of a micron in size. Biota obtain metals only if they are present at clay-size particles. Only 10 percent of the quantity of metals that are theoretically available to the biota in a given environment is actually absorbed in tissues.
Salinity Has Little Effect on Metals
146. Salinity does not exert a controlling influence on absorption/desorption reactions except at very low salinities. If the salinity is zero, which is essentially a pure freshwater environment, and the salinity level then rises 3 ppt, there would be profound changes in the metal loads, for example, where rivers meet estuaries or seawater. When salinity levels in the water are on the order of 25 ppt, small salinity perturbations such as 2.5 ppt will have a very small effect on absorption/desorption reactions. In fact, the influence can be either positive or negative, but in general they are going to be quite small.
147. Potential releases or gains of metal from salinity changes of 2.5 ppt, at the area of the discharge canal, would be difficult to predict, and it is uncertain whether the change would be positive or negative.
pH Will Have Virtually No Effect on Metals
148. Although SOBAC witness Dr. Isphording knew of no change to pH caused by the desalination process, he testified to the alleged effect of lowered pH on the metal in the sediments and water column.
149. Only large pH differences can have a significant influence on absorption or desorption of metals. Any effect on absorption from a decrease
53 in pH on the order of a tenth of a pH unit will be hidden within the natural variations of the estuarine system. See Finding 140, supra.
Effect of Lower Oxygen Levels on Metals 150. Redox is basically an oxidation-reduction phenomenon. In order for the low levels of oxygen to have a reducing effect resulting in a release of metals from sediments, virtually all of the oxygen would have to be removed from the water. Basically, the environment would have to reach anoxic conditions. Even then, some metals such as copper would remain within the sediments.
151. In an oxygen-buffered system, redox perturbations will not significantly or measurably mobilize metals. Sediments can be oxidizing in the upper part and then generally become more reducing at depth. The area near the desal discharge does not have organic-rich deep sediment.
Proposed Discharge Effect on Bioavailability of Metals
152. The proposed desalination plant's discharge will not increase the bioavailability on metals above that of natural variations and any changes would be hard to discern or measure. Nor will there be any appreciable accumulation of metals in sediments in the receiving water resulting from the proposed desalination discharge.
153. DEP has not established any sediment quality standard and monitoring of sediments is not a NPDES requirement. The desalination plant does not result in violations of Class III marine surface water criteria and standards.
No Synergistic Effects Caused by Discharge
154. There are no synergistic effects from the proposed discharge wherein the combination of two elements such as temperature and salinity
54 together would create a new effect. Instead, pH, redox, salinity, and temperature may have small, immeasurable effects that may offset each other.
M. No Adverse Impacts to Biota
155. Comprehensive species lists of phytoplankton, zooplankton, benthic macroinvertebrates, fish, aquatic flora (including seagrasses and mangrove species), and threatened or endangered species inhabiting the area were prepared based on extensive review of applicable scientific literature on Tampa
Bay. The salinity tolerance ranges of these species were determined through extensive review of information on salinity ranges associated with species capture, laboratory studies, review of studies addressing species types and salinity tolerances in hypersaline estuaries, and species salinity tolerances determined for other desalination projects.
156. When background salinity is above 10 ppt, changes in salinity of a few ppt have no effect on most organisms. Lower salinities are more detrimental than high salinities to most marine organisms, as long as the upper limit does not exceed a value of approximately 40 ppt salinity.
157. Most planktonic species and life forms can tolerate salinities of up to 40 ppt. Mangrove and seagrass species living in the area can tolerate salinity levels as high as 60 ppt. Benthic macroinvertebrates in the area routinely experience, tolerate and survive in salinity levels ranging from approximately 6 ppt to over 39 ppt under natural environmental conditions.
158. Fish species in the area routinely experience and tolerate salinity levels as high as 39 to 40 ppt under natural environmental conditions.
Estuaries serve as fish nurseries because fish species lay their eggs in estuaries, and the larval and juvenile life stages live and mature in estuaries. Due to extreme range of conditions that naturally occur in estuaries, fish reproductive strategies have adapted to enable fish eggs and larval and juvenile life stages to tolerate the wide range of natural conditions, including ranges in salinity levels, that are endemic to estuaries.
55 Egg, larval, and juvenile fish stages may be better able to tolerate extreme range of salinities than adults life stages.
159. A 2.5 ppt increase in salinity and the permitted maximum increase of 10 percent above the intake chloride level is within the range of tolerance and variability that seagrasses, mangrove species, benthic macroinvertebrates, biota, fishes, manatees, zooplanktonic and phytoplanktonic species, and other organisms and life forms living in Tampa Bay routinely encounter and tolerate in the natural environment.
160. A 2.5 ppt increase in salinity with the maximum permitted salinity discharge limit of 35.8 ppt of salinity and the permitted maximum increase of
10 percent above the intake chloride level will not adversely affect the survival or propagation of seagrasses, mangroves, benthic macroinvertebrates, biota, zooplankton, phytoplankton, fish, fish eggs, or juvenile life stages of fish species, or other organisms or life forms in Tampa Bay, and specifically the portion of Tampa Bay in the vicinity of the desalination plant discharge.
161. The Shannon-Weiner Index, which is a biological integrity index codified at Rule 62-302.530(11), requires that the index for benthic macroinvertebrates not be reduced to less than 75 percent of established background levels. Since there will be no adverse impacts to benthic macroinvertebrates due to the desalination discharge and since the level of salinity increases anticipated will tend to benefit benthic macroinvertebrates population, TBD has met the criterion in Rule 62-302.530(11).
162. The Mote Marine Laboratory data showed that Tampa Bay experienced a
2.0 ppt change in salinity over the course of one month. No fish kill or observable die-offs of species were observed or reported from this natural occurrence of elevated salinity.
163. The desalination discharge will (1) not adversely affect the conservation of fish and wildlife, including endangered species, or their habitats, (2) not adversely affect fishing or water-based recreational values
56 or marine productivity in the vicinity of the proposed discharge, (3) not violate any Class III marine water quality standards, and (4) maintain water quality for the propagation or wildlife, fish, and other aquatic life.
164. The desalination discharge meets the antidegradation standards and policy set forth in Rules 62-4.242 and 62-302.300.
N. Discharge Disposal Options Analyzed
165. As part of the permitting process, TBD demonstrated that the use of land application of the discharge, other discharge locations, or reuse of the discharge was not economically and technologically reasonable, pursuant to Rule
62-4.242. TBD submitted a sufficient analysis of these options as part of its
Antidegradation Analysis. (TBD Ex. 1G; TBD Ex. 200, Fact Sheet, p. 16).
O. Further Protection in the Permit
166. The permit review of the desalination permit application is one of the most thorough ever conducted by DEP. The proposed permit has conditions which create and provide a wide margin of environmental protection.
167. The permit sets effluent limitations of various constituents which are reasonably expected to be in the desal facility discharge and provides for monitoring programs to ensure compliance with those effluent limitations.
168. The monitoring requirements of the proposed permit exceed the monitoring requirement imposed on other facilities in the Tampa Bay area.
Effluent Limitations 169. DEP established effluent limitations using the Class III marine state water quality standards, data provided from the pilot plant regarding the chemical characterization, the modeling conducted by DHI and the University of
South Florida, and the water quality data collection by Mote Marine Laboratory in connection with the establishment of the WQBEL. The effluent limitations contained in the permit are consistent with DEP rules.
170. The proposed permit restricts TBD to the lesser of either the chloride limit of 10 percent above intake or the salinity limit of 35.8 ppt.
57 171. There is no state water quality standard for salinity. The permit limit for chlorides complies with Rule 62-302.530(18). The permit's additional requirement of a minimum dilution ratio has the effect of limiting chlorides to
7 percent above intake for 384 hours per year and 5 percent above intake for the remainder of the year and thus provides extraordinary assurance that the state water quality standard for chlorides will be met.
172. Dr. Champ was SOBAC's primary witness in support of its argument that the proposed permit allows a discharge with excessive salinity. But it was apparent from his testimony that Dr. Champ misinterpreted the permit limitations for salinity. See Finding 196, infra. Dr. Champ conceded that the chloride limit of 10 percent above intake was appropriate but focused on the
35.8 ppt maximum, as if it overrode the chloride limitation. As found, the opposite is true. TBD will be limited to 10 percent above intake for chlorides even if the result is salinity far less than the daily maximum of 35.8 ppt.
173. Dr. Champ also had concerns about comparing the discharge to intake chloride levels as not being representative of "normal background." He argued
(as does SOBAC) for comparing discharge to chloride levels somewhere else in
Middle Tampa Bay, nearby but far enough away to insure no influence from the discharge. But the modeling evidence provided reasonable assurance that there will not be a great deal of recirculation of discharge to intake and that the recirculation expected will not cause salinity to build-up continuously over time. The modeling evidence is accepted as far more persuasive than Dr.
Champ's testimony. See Finding 196, infra.
174. The only metals for which effluent limitations were established in the permit are copper, nickel, and iron because these were the only metals determined to be close to the state water quality standard levels by the pilot plant studies. The actual levels of such metals in the desalination discharge will be less than those in the pilot plant testing because the dilution ratio
(12.8 to 1) used in the pilot testing is much higher than the minimum dilution
58 ratio required by the permit (20 to 1). The permit effluent limitations for copper, nickel, and iron are based on, and comply with, DEP Rules 62-302.500(2)
(d) and 62-302.530(24), (39) and (45).
175. The permit effluent limitations for Gross Alpha are based on and comply with the requirements in Rule 62-302.530(58).
176. Biological treatment of the desalination plant discharge concentrate is not required because it consists of seawater.
Monitoring for Effluent Limitations 177. DEP is able to separately determine TEC's compliance with its permit from TBD's compliance with the effluent limitations in the proposed desalination permit because of how the facility is designed and the monitoring is constructed.
178. Monitoring requirements in the proposed permit were determined with reference to the probability of desal facility discharge exceeding specific water quality standards. DEP rules do not require monitoring for each and every constituent detected above background concentrations, only those which would probably exceed state water quality standards.
179. The permit requires monitoring of effluent limitations at the intake to and discharge from the desalination facility and the calculation of the diluted effluent levels in the co-mingled discharge water. In order to calculate the effluent components in the diluted discharge water, continuous monitoring is performed on the TEC cooling water discharge rate of flow.
Parameters of DO, conductivity, salinity, chlorides, copper, iron, nickel, radium, gross alpha, and effluent toxicity are measured at both intake and discharge pursuant to proposed permit.
Monitoring of Intake 180. Monitoring of the intake will be located, after interception off
TEC Units 3 and 4, prior to entering the desalination plant. Using a sampling location of the intake to the desalination facility prior to filtering or chemical addition for background samples is consistent with the definition of
59 "background" in DEP Rule 62-302.200(3). EPC Stations 11, 80, 81, 13, and 14 are not proper locations for background samples because salinity varies with tides and depth and those stations are too distant from the actual intake point. EPC station 9 is not a good location because it is closer to the discharge than the permit sample point.
Monitoring of Discharge 181. Monitoring of the discharge will take place in the wet well prior to discharge into TEC's cooling water discharge tunnels. This monitoring location is in compliance with Rule 62-620.620(2)(i) which provides for monitoring of effluent limitations in internal waste streams.
182. Monitoring of the desal facility discharge concentrate in each of the four cooling water discharge tunnels is impractical due to the high volume of dilution and addition of four potential discharge locations. Once the desal facility concentrate is diluted by the TEC cooling water discharge, it is much more difficult to obtain accurate water quality testing for constituents at such minute levels.
Monitoring of the Combined Discharge Concentrations 183. Calculations determine the mixing ratios of the desalination concentrate with TEC's cooling water. Using the flow data from TEC, the calculations will accurately determine the water quality of the co-mingled discharge water.
Compliance with Permit Effluent Limitations 184. The proposed permit requires TBD to monitor constituents for which there are effluent limitations on either a daily, weekly or monthly basis, depending on the constituent. The frequency of monitoring for each constituent is based on comparing the expected levels of the constituent to the water quality standard and analyzing the probability of the desal facility discharge exceeding that standard. The monitoring provides additional assurances beyond the pilot plant studies, testing and modeling that no water quality standard will be violated.
60 185. Continuous monitoring is not necessary to successfully monitor discharges. Monthly measurements are sufficient to determine compliance even for a daily permit level because the chemical characterization studies provide reasonable assurances that the desalination concentrate will not exceed the effluent limitations. Monthly monitoring provides further checks and balances to assure that the desalination discharge is in conformance with the effluent limitations and DEP rules. The EPA only requires that monitoring occur at least once a year.
186. Conductivity provides a direct correlation to salinity and chlorides. Measuring conductivity provides salinity and chloride levels by basis of calculations and is typically used as a surrogate for monitoring chloride and salinity continuously. Salinity and chloride cannot themselves be measured continuously because they are measured by lab tests. The permit requires conductivity to be monitored continuously, not because DEP believed the desalination discharge would be near the chloride limitation, but rather to be extremely conservative. The permit conditions treat an exceedance of salinity or chlorides based on conductivity readings to be a violation of the permit effluent limitations for salinity and chlorides.
187. TBD provided reasonable assurance to DEP that the proposed desalination discharge would not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62-302.300(15). The permit condition requiring monitoring of DO provides verification that desal facility discharge will meet the DO water quality standards. Even SOBAC's witness Dr. Champ admitted that a continuous measurement for DO is not as valuable as random weekly samples.
External Monitoring Programs 188. The proposed permit requires TBD to develop and submit to DEP a
Biological Monitoring Program to monitor seagrasses, benthic macroninvertebrates and fish populations to be consistent with existing Tampa
61 Bay monitoring programs. This program will provide an effective means of monitoring the potential impacts of the desalination discharge.
189. The proposed permit also requires TBD to implement a Water Quality
Monitoring Program for three monitoring stations located proximal to the intake, the discharge and the North Apollo Beach Embayment which will monitor conductivity, salinity, DO and temperature continuously.
190. These monitoring programs will provide additional ambient data to
DEP. If the data indicate an exceedance or reasonable potential for an exceedance of water quality standards, DEP may reopen the permit in accordance with the reopener clause contained in the permit. These monitoring programs go beyond the requirements in DEP rules. Additionally, DEP does independent monitoring of NPDES discharges without notice and on a purposely unpredictable basis.
P. Proof of Financial Responsibility
191. Rule 62-620.301(6) addresses when DEP may require a permit applicant to submit proof of financial responsibility to guarantee compliance with Chapter 403, Florida Statutes.
192. TBD's compliance history was taken into consideration during the permitting process. Adequate financial assurance were provided in the permit application. (TBD Ex. 1I). Further, the permit conditions added by the settlement agreement (TBD Ex. 470) provide for additional financial assurance beyond those that can be required by the NPDES program and DEP rules.
Q. Additional Comment on SOBAC's Evidence
193. As already indicated, SOBAC elicited the testimony of several expert witnesses at final hearing to support its contentions. But none of
SOBAC's experts spent a great deal of time studying TBD's desal project,
62 especially compared to witnesses for the other parties. Mostly, SOBAC experts expressed general scientific principles that were not directly tied to specifics of the desal project or were very general expressions of concern.
Often, SOBAC's experts were not familiar with all the efforts of experts offered by the other parties to address those very concerns. Except for Dr.
Champ, no SOBAC expert opined that the proposed permits would result in violations of DEP statutes and rules. Some SOBAC experts expressed opinions that only would be relevant if there were insufficient assurances in proposed permits that DEP statutes and rules would not be violated. Statistical evidence presented was not particularly relevant.
Dr. Goodwin 194. As previously mentioned, Dr. Carl Goodwin was willing to provide testimony on work he did for the USGS, but he gave no expert opinions on the permits which are the subject of these proceedings. As also previously discussed, his two-dimensional model studies were constrained by computational limitations. Even so, his studies indicated that flushing in Tampa Bay was becoming more rapid in recent years. In addition, even if the "gyres" suggested by his two-dimensional studies actually existed, they would tend to promote mixing in Tampa Bay in area of the Big Bend power plant.
Dr. Champ 195. Dr. Champ's first opinion was that 35.8 ppt is too high a salinity limit and would result in "oceanic" conditions. He attempted to compare this result to results of diversion of substantial amounts of freshwater inputs to the Black Sea for agricultural purposes--a totally different situation not suitable for comparison to Tampa Bay.
196. Initially, Dr. Champ suggested a limitation of a 10 percent increase above "background" or "ambient" conditions; it was apparent that initially Dr. Champ was not cognizant of the 10 percent over intake chloride limitation in the proposed permit. When he was made aware of the chloride limit, he misinterpreted the two limits, saying that TBD would not be limited
63 to the lower of the two. When it was suggested that he might have misinterpreted the two salinity limits, Dr. Champ testified that chlorides should be compared to a "natural" or "environmental" control site somewhere nearby but outside the influence of the combined TEC/TBD discharge; he said it was a "farce" to compare chlorides to a control site "inside the plant." In so doing, he seemed not to recognize the purpose of the comparison made in the proposed permit--to isolate and identify the impacts of TBD's desal process.
In addition, dismissing without much consideration the contrary results of extensive and sophisticated modeling, Dr. Champ opined off-handedly that DO would decrease due to higher salinity that would recirculate and build-up over time. In part, Dr. Champ based this opinion on his misunderstanding that Tampa
Bay is not well-mixed or well-circulated at the location of the Big Bend power plant. This was contrary to all the evidence; even if the "gyres" predicted by
Dr. Goodwin's two-dimensional model existed, they would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant.
197. Dr. Champ next misinterpreted the DO limits in the proposed permit.
See Finding 133, supra. Dr. Champ then predicted a decrease in species diversity as a result of higher salinity and lower DO. (To the contrary, salinity increases in the amounts predicted by the far greater weight of the evidence probably would result in somewhat of an increase in species diversity.) Ultimately, Dr. Champ testified that consequences to marine organisms would be dire, even if salinity increased only by 2.5 ppt, because a
"salinity barrier" would form across Middle Tampa Bay in contrast to more gradual natural changes in salinity. The far greater weight of the evidence was to the contrary.
198. Dr. Champ made several suggestions to avoid the calamitous results he predicted: require use of a cooling tower to reduce the temperature of the combined TEC/TBD discharge; collect the desal brine concentrate and barge it to the Gulf of Mexico; require intake and discharge pipes extending into the
64 shipping channel in Middle Tampa Bay. But Dr. Champ did not study or give a great deal of thought to implementation of these suggestions. Besides, the other parties proved that these measures were not needed for reasonable assurances.
199. In an attempt to buttress his opinion testimony, Dr. Champ also testified (along with SOBAC's President, B.J. Lower) that the TEC intake canal is virtually devoid of life and that biodiversity in the discharge canal is very low. This testimony was conclusively refuted by the rebuttal testimony of
Charles Courtney, who made a site visit after SOBAC's testimony and described in detail a significant number of healthy species in the intake canal, including oyster communities, xanthid crabs, porcellanid crabs, snook, anemones, bivalves, polychaete, and mangroves with seedlings. Of the one and one-half pounds of oysters that Mr. Courtney sampled, he estimated that approximately fifty percent of those oysters were living, which represents a very healthy community. Mr. Courtney further noted that some of the crabs were carrying eggs, which indicates an active life cycle for those species.
200. As to the TEC permit modification, Dr. Champ testified that it was
“in-house stuff” which would not affect the environment outside the TEC plant.
No other SOBAC witness addressed the TEC permit modification.
Dr. Isphording 201. SOBAC called Dr. Wayne Isphording as an expert in sedimentology and geochemistry. Dr. Isphording expressed no concern that the desal process would add metals to Tampa Bay. Essentially, he gave opinion testimony concerning general principles of sedimentology and geochemistry. He testified that heavy metals bound in sediments are released naturally with increases in salinity, but that salinity levels would have to be extreme to result in the release of abnormal quantities of such metals. He admitted that he had performed no studies of sediments in Tampa Bay and declined to offer specific opinions that metals in fact would be released as a result of predicted salinity increases.
65 202. Dr. Isphording admitted that he knew of no condition in the proposed Desal Facility permit which would cause or allow a violation of state water quality standards. He was aware of no statute or rule requiring more monitoring and testing than is required in the proposed permit.
Dr. Parsons 203. SOBAC offered the testimony of Dr. Arthur Rost Parsons, an assistant professor of oceanography at the Naval Postgraduate School, in an attempt to raise questions regarding the near-field and far-field modeling which were provided by TBD to DEP during the course of the permitting process.
However, not only had Dr. Parsons not done any modeling in Tampa Bay himself, he was not provided numerous reports and clarifications relating to the studies he was called to critique. He only reviewed an interim report dated
November 1, 2000, regarding the near-field model.
204. Dr. Parsons testified that the DHI model used for the near-field study was an excellent shallow water model. He found nothing scientifically wrong with it and testified that the "physics and the model itself is . . . well–documented." Dr. Parsons also did not contradict the results of the DHI model. Instead, he noted that the modeling task was difficult and complex, he described some of the model's limitations, and he testified to things that could have been done to increase his confidence in the model results.
205. One of Dr. Parson's suggestions was to run the model longer. But the evidence was that, due to the model's complexity and high computational demands, it would have been extremely expensive to run the model for longer periods of time.
206. Another of Dr. Parson's suggestions was to use salinity data would be to use the information that the model itself generated with regard to salinity distributions instead of a homogeneous set of salinity data. Dr.
Parsons was concerned that use of homogeneous salinity data would not reflect the effect of "double diffusion" of heat and salinity, which would result in
66 sinking of the combined heat. But engineer Andrew Driscoll testified in rebuttal that the effects of "double diffusion" would cease once equilibrium was reached and would not result in a hypersaline plum sinking to the bottom.
In addition, he testified that turbulent mixing from tide and wind would dominate over the effect of "double diffusion" at the molecular level so as to thoroughly mix the water, especially in the shallow North Apollo Beach
Embayment.
207. Dr. Parsons also suggested that the model be run for rainy season conditions to see if the effects of vertical stratification would increase.
But even if vertical stratification increased as a result of rain, salinity also would be expected to decrease. The scenario modeled was "worst case."
208. Dr. Parsons also suggested the use of a range of temperatures for the combined heat/salinity plume instead of an average temperature. However, he conceded that it was not inappropriate to use average temperature. Instead, he would have liked to have seen the model run for a range of temperatures to see if the model was sensitive to temperature differences so as to increase his confidence in the results.
209. Dr. Parson's testimony focused on the near-field model. His only comment on the far-field model was that he thought it should have used the out- puts from the near-field model (as the near-field used the outputs).
Scott Herber 210. SOBAC offered no direct testimony on the impact of the Desal
Facility discharge on seagrasses in Tampa Bay. The testimony of Steve Herber, a doctoral student at the Florida Institute of Technology, related to the vulnerability of seagrasses, in general, to changes in salinity. However,
Mr. Herber had no specific knowledge of the seagrasses present in Tampa Bay and had not performed or reviewed any scientific studies upon which his opinion could be based. He reached no conclusions about the specific permits at issue
67 in this proceeding, nor about the effect of the Desal Facility on seagrasses in
Tampa Bay.
211. In contrast to Mr. Herber, the testimony of TBD's expert, Robin
Lewis, and SWFWMD's expert, Dr. David Tomasko, provided detailed information about the seagrasses located in Tampa Bay. Both have studied seagrasses in
Tampa Bay for many years and have been involved in mapping seagrass distribution in a variety of bays and estuaries along the west coast of
Florida. Dr. Tomasko criticized witnesses for SOBAC who attempted to draw conclusions about Tampa Bay based on studies of other bays and estuaries because each bay has unique characteristics that cannot be extrapolated from studies of other bays. Dr. Tomasko and Lewis testified that seagrasses in
Tampa Bay are becoming more abundant, that dissolved oxygen levels are increasing, and that water clarity in Tampa Bay is also improving.
Dr. Mishra
212. Dr. Satya Mishra was called by SOBAC as an expert in statistics.
He is not an expert in the discrete field of environmental statistics. He has never been involved in the development of a biological monitoring program and could not provide an opinion regarding what would be an adequate sample size for this permit. He essentially expressed the general opinions that for purposes of predictive statistical analysis: random sampling is preferred; statistical reliability increases with the number of samples; and 95 percent reliability is acceptable. Dr. Mishra performed no statistical analysis in this case and could not conclude that the sampling provided in the proposed permit would not be random.
Ron Chandler 213. Ron Chandler, a marketing representative for Yellow Springs
Instrument Corporation (YSI), simply testified for SOBAC regarding the availability of certain types of continuous monitoring devices. He did not offer any opinions regarding whether or not reasonable assurance required
68 continuous monitoring of any specific parameter or any monitoring different from or in addition to what is proposed in TBD's proposed permit.
John Yoho 214. SOBAC called John Yoho as a financial and insurance expert to criticize the terms of an agreement by TBD, TBW, and DEP to settle Hillsborough
County's request for an administrative hearing (DOAH Case No. 01-1950). This agreement is contained in TBD Ex. 470. But Yoho admitted that he had no knowledge regarding what is required to obtain an NPDES permit in terms of financial assurances. He also indicated that none of his testimony should be understood as relating in any way to financial assurances required for such a permit to be issued.
R. Alleged Improper Purpose
215. The evidence did not prove that SOBAC participated in DOAH Case No.
01-2720 for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of TEC's permit modification applications. To the contrary, the evidence was that SOBAC participated in this proceeding in an attempt to raise justifiable issues arising from the peculiarities of the relationship of TEC's permit modification application to
TBD's permit application. Although SOBAC suffered adverse legal rulings that prevented it from pursuing many of the issues it sought to have adjudicated on
TEC's permit modification application, it continued to pursue issues as to the
TBD permit application which, if successful, could require action to be taken on property controlled by TEC and, arguably, could require further modification of TEC's permit.
CONCLUSIONS OF LAW S. SOBAC's Standing
216. SOBAC alleged standing under both Section 120.569 and Section
403.412(5). (Except when United States Code is indicated, all statutory
69 citations are to the 2000 Florida Statutes; all rule citations are to the current Florida Administrative Code.)
217. Under Section 120.569(2)(b): "All parties shall be afforded an opportunity for a hearing . . .." Under Section 120.52(12), parties include any person "whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party."
218. Under Agrico Chemical Co. v. Dept. of Environmental Reg., 406
So. 2d 478, 482 (Fla. 2nd DCA 1981), standing requires proof of "an injury in fact which is of sufficient immediacy" and that the "substantial injury is of a type or nature which the proceeding is designed to protect." See also
Ameristeel Corp. v. Clark, 691 So. 2d 473 (Fla. 1997). Injury suffered by the general public is not sufficient. See Agrico, supra at 479-480. See also Grove
Isle, Ltd. v. Bayshore Homeowners' Ass'n, Inc., 418 So. 2d 1046, 1048 (Fla. 1st
DCA 1982).
219. Since SOBAC is an association seeking to establish "associational" standing, it must prove: (a) that a substantial number of its members, although not necessarily a majority, are substantially affected by the proposed permits;
(b) that the subject matter of the proposed permits is within the general scope of the interests and activity for which the organization was created; and (c) that the relief requested is of the type appropriate for the organization to receive on behalf of its members. See Florida Home Builders Association, Inc. v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982).
See also Florida League of Cities, Inc. v. Department of Environmental
Regulation, 603 So. 2d 1363 (Fla. 1992); Friends of the Everglades, Inc. v.
Board of Trustees of the Internal Improvement Trust Fund, 595 So. 2d 186 (Fla.
1st DCA 1992). The only issue as to SOBAC is the first of the three requirements.
220. While SOBAC's proof was not detailed, it was sufficient to prove that, if the proposed permits resulted in damage to the environment, a
70 substantial number of its members would be substantially affected in their use of the waters and wetlands of the Big Bend area for recreational activities such as boating and fishing. Proof of standing under Section 120.569 hinges on
SOBAC's proof of environmental damage.
221. Section 403.412(5) provides:
In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.
222. It has been held: "The Legislature enacted section 403.412 to extend standing to private and corporate citizens of Florida without any showing of special injury as required by the traditional rule of standing. See
Florida Wildlife Fed'n v. State Dep't of Environmental Regulation, 390 So. 2d at 67-68." Legal Environmental Assistance Foundation v. Department of
Environmental Protection, 702 So. 2d 1352 (Fla. 1st DCA 1997). See also Cape
Cave Corp. v. State Dept. of Environmental Regulation, 498 So. 2d 1309 (Fla.
1st DCA 1986)("citizen" includes Florida corporations); Manasota-88, Inc. v.
Department of Environmental Regulation, 441 So. 2d 1109 (Fla. 1st DCA 1983)
("intervention," as used in this statute, includes a request for an administrative hearing on receipt of an agency's notice of intent to issue an environmental permit).
223. Standing under Section 403.412(5) does not require proof of environmental damage. It only requires that the permitting be designed to protect the environment from damage. SOBAC has standing under Section
403.412(5).
T. Burdens of Proof and Persuasion
71 224. As a wastewater discharge permit applicant, TBD carries the ultimate burden of proof throughout all proceedings, of whatever nature, until such time as final action has been taken by the agency. Florida Dept. of
Transp. v. J.W.C. Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).
225. Any petitioner who opposes a permit application must identify areas of controversy and allege factually-based reasons why the facts relied upon by the applicant and the agency fall short of carrying the "reasonable assurances" burden cast upon the applicant. J.W.C., 396 So. 2d at 789. Once a permit applicant presents its evidence and makes a preliminary showing of reasonable assurances, the challenger must present contrary evidence of equivalent quality that presented by the permit applicant. Id.
U. TBD's NPDES Permit
226. The Clean Water Act requires that every industrial and municipal facility that directly discharges pollutants into streams, lakes, or the ocean have a permit. See 33 U.S.C. Section 1311(a). This permit is called a
"National Pollutant Discharge Elimination System" or "NPDES" permit. In the case of National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), the Circuit Court for the District of Columbia specifically addressed the purpose of a NPDES permit when it applied the rules of statutory construction to 33 USC Section 1342 (also known as Section 402 of the Clean Water Act), to conclude that a NPDES permit is required only when the following five elements are present: (1) a pollutant must be (2) added (3) to navigable waters (4) from
(5) a point source. Id. (Emphasis in original). A NPDES permit will typically contain limitations on the amount of pollutant to be discharged, with those limitations based on technology standards or water quality standards.
See 33 U.S.C. Section 1311(b).
227. Under the Clean Water Act, the EPA may delegate its evaluations of
NPDES permit applications to a state if that state adopts a permitting program which is substantially equivalent to the federal program. See 33 U.S.C.
72 Section 1342(b). Here, the Florida Legislature authorized DEP to establish the state equivalent of a NPDES permitting program. See Section 403.0885(2). As directed by the Florida Legislature, DEP promulgated extensive regulations to implement the Florida NPDES permitting program. These regulations supplemented already existing wastewater discharge regulations, which explains why such permits are alternatively referred to as NPDES permits or wastewater discharge permits, and also why the regulations governing the issuance of the industrial wastewater discharge permit are scattered throughout Title 62 of the Florida
Administrative Code.
228. The bulk of the regulations are found in Chapter 62-620, Florida
Administrative Code. In a public document entitled "Guide to Permitting
Wastewater Facilities or Activities Under Chapter 62-620" (the "Guide"), which
DEP incorporated into its rules by reference, DEP provides additional insight into what an applicant must demonstrate in order to receive an industrial wastewater permit. Rule 62-620.100(3). Other rule chapters governing issuance of a NPDES permit include: (1) Chapter 62-4 (Permitting General Provisions);
(2) Chapter 62-302 (Surface Water Quality Standards); (3) Chapter 62-650 (Water
Quality Based Effluent Limitations); and (4) Chapter 62-660 (Industrial
Wastewater Facilities). The criteria contained within these chapters often overlap. If a conflict should arise between the rules outlined in Chapter 62-
620 and other specific or general rules of DEP, the rules contained within
Chapter 62-620 rules supercede the other rules. Rule 62-620.100(2).
Chapter 62-620 and Guide to Wastewater Permitting 229. SOBAC stipulated that TBD submitted a "complete" permit application to DEP as required by Chapter 62-620 and the Guide. Therefore, the permit application meets all applicable requirements concerning its completeness contained in Rules 62-620.300, 62-620.301, 62-620.305, 62-620.310, 62-620.400, and 62-620.410. SOBAC also stipulated that TBD and DEP met all public notice
73 and comment requirements. Therefore, the permit application meets all requirements contained in Rules 62-620.510, 62-620.550, and 62-620.555.
230. Perhaps the most important rule under this chapter is Rule 62-
620.320, which provides that a permit may only be issued if the applicant provides reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the wastewater facility or activity will not discharge or cause pollution in contravention to Chapter 403, Florida Statutes, and other applicable rules.
Here, TBD submitted a preliminary engineering report, plans, pilot plant studies, near-field and far-field models and other information concerning the engineering, design, construction, and operation of the facility, which provided reasonable assurance that the proposed facility will not cause pollution in contravention of Chapter 403, Florida Statutes, and applicable DEP rules. Through evidence introduced at the administrative hearing, TBD provided additional assurances that it will not cause or contribute to violations of water quality standards. For that reason, TBD is not required to resort to any of the "moderating provisions" set out in Rule 62-302.300(10).
231. Rules 62-620.610 and 62-620.620 contain the general conditions and guidelines for establishing special conditions for all wastewater permits. DEP incorporated general and specific conditions into the proposed permit. By agreeing to these stringent conditions, which trigger any necessary corrective measures, TBD provided reasonable assurances that the directives of these rule provisions will be met by TBD.
Chapter 62-4 232. TBD provided reasonable assurances that it meets all applicable criteria outlined in Chapter 62-4, Florida Administrative Code. TBD submitted a complete permit application containing all information required by Chapter
62-620 and the Guide, thereby meeting the permit application requirements of
74 Rules 62-4.210 and 62-4.240. SOBAC stipulated that TBD paid the appropriate permitting fee required by Rule 62-4.050. SOBAC also stipulated that TBD performed all applicable procedural requirements required by Rule 62-4.055.
233. Rule 62-4.070 requires the same "reasonable assurances" for issuance of a permit as contained in Rule 62-620.320. Through its submission of a preliminary design report, plans, test results, modeling, installation of pollution control equipment, witness testimony or exhibits, TBD provides reasonable assurances that the construction, modification, or operation of the wastewater facility or activity will not discharge or cause pollution in contravention to Chapter 403, Florida Statutes, and other applicable rules.
234. Rule 62-4.242(1) incorporates the state's antidegradation policy into a permit criterion, which provides as follows:
(a) Permits shall be issued when consistent with the antidegradation policy set forth in rule 62-302.300, and if applicable, rule 62-302.700.
(b) In determining whether a proposed discharge which results in water quality degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the department shall consider and balance the following factors:
1. Whether the proposed project is important to and is beneficial to the public health, safety, or welfare (taking into account the policies set forth in rules 62-302.100, 62- 302.300, and if applicable, rule 62-302.700);
2. Whether the proposed discharge will adversely affect the conservation of fish and wildlife, including threatened and endangered species, or their habitats; and
3. Whether the proposed discharge would adversely affect the fishing or water-based recreational activities or marine productivity in the vicinity of the discharge; and
4. Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department.
(c) In addition to subsection (b) above, in order for a proposed discharge to be necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the
75 permit applicant must demonstrate that neither of the following is economically and technologically reasonable:
1. Reuse of domestic reclaimed water.
2. Use of other discharge locations, the use of land application, or reuse that would minimize or eliminate the need to lower water quality.
235. All state waters are classified according to their designated uses.
Rule 62-302.400(1). In the instant case, Tampa Bay will receive the proposed discharge. The relevant portion of Tampa Bay is a Class III marine water classification and is not classified as an Outstanding Florida Water or an
Outstanding Natural Resources Water. Hence, Rule 62-302.700, which establishes the antidegradation policy applicable to Outstanding Florida Waters or
Outstanding Natural Resource Waters, does not apply in the instant case.
236. Although Rule 62-302.700 does not apply in the instant case, TBD must still meet the antidegradation criteria outlined in Rule 62-302.300. If
DEP finds that the proposed discharge will reduce the water quality of the receiving waters below the established classification, it is required to deny the permit application. Section 403.088(2)(b); Rule 62-302.300(16). In contrast, if DEP finds that the proposed discharge will not reduce the quality of receiving waters below their classification, it may issue a permit if it finds that the degradation of the waters is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. Section 403.088(2)(b); Rule 62-302.300(17).
237. TBD demonstrated through its evidence that its discharge would not adversely affect the propagation of fish, wildlife, or other aquatic species.
TBD demonstrated that the desalination plant discharge will be diluted via the
TEC cooling water stream, such that its discharge will not lower the water quality in Tampa Bay below the Class III marine water quality standards. The end product of the desalination process, i.e., potable water, provides one of the elements necessary for life and ensures the public health, safety, and
76 welfare of the Tampa Bay region. The desalination plant is an essential component of TBW's Master Water Plan, which is designed to ensure adequate supplies of potable water, while at the same time alleviate environmental stress on wetlands and lakes in the region. TBD provided evidence that the desalination plant discharge will not adversely affect the conservation of fish and wildlife or other aquatic life, including threatened or endangered species or their habitats, nor would it adversely affect marine productivity or fishing or other water-based recreational activities. TBD also demonstrated that the proposed discharge is consistent with the SWFWMD's adopted SWIM plan.
Therefore, TBD provided reasonable assurances that the proposed discharge meets the provisions in Rules 62-302.300 and 62-4.242.
238. TBD also provided reasonable assurance that the proposed desalination plant discharge meets the requirements of Rule 62-4.242(1)(c).
Since this project is an industrial wastewater project that does not involve the discharge of domestic wastewater, the requirement to reuse domestic wastewater if economically and technologically reasonable does not apply. With respect to whether there are other options that would eliminate or reduce the need to lower water quality, TBD considered other disposal options, and they were found not to be economically or technologically feasible.
239. Rule 62-2.246 provides that DEP must require monitoring and sampling for pollutants reasonably expected to be contained in the discharge, and that all field testing, sampling, laboratory testing, and record-keeping must comply with the Quality Assurance procedures established in Chapter 62-
160. The proposed permit requires extensive monitoring and sampling of the desalination plant discharge, and expressly requires that all testing, sampling, and record-keeping must comply with the provisions of Chapter 62-160.
Therefore, TBD provided reasonable assurance that meets the requirements outlined in Rule 62-6.246.
Chapter 62-302
77 240. The criteria contained within Chapter 62-302 often overlap or cross-reference those outlined in Chapter 62-4. As outlined above, TBD provided reasonable assurances that the proposed discharge will meet the antidegradation policy set forth in Rule 62-302.300. Turning to other portions of Chapter 62-302, Rule 62-302.500(1) sets forth the minimum criteria for surface waters, (or "free from" standards):
(1) All surface water should at all times to be free from domestic, industrial, agricultural, or other man-induced discharges which, alone or in combination with other substances or in combination with other components of discharges (thermal or non- thermal):
1. Settle to form putrescent deposits or otherwise create a nuisance; or
2. Float as debris, scum, oil, or other matter in such amounts as to form nuisances; or
3. Produce color, odor, taste, turbidity, or other conditions in such degree as to create a nuisance; or
4. Are acutely toxic; or
5. Are present in concentrations that are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species, unless specific standards are established for such components in rules 62-302.500(2) or 62- 302.530; or
6. Pose a serious danger to the public health, safety, or welfare.
241. The proposed desalination discharge does not violate the "free from" rule because no component of the discharge, alone or in combination with other discharge components causes a violation of the minimum criteria listed above. TBD specifically debunked any concerns about silver levels in the discharge, because at no time will the discharge contain silver in concentrations greater than 2.3 micrograms/liter. TBD provided reasonable assurances that the proposed discharge will meet all Class III marine surface water standards set to protect recreational uses, including fishing and swimming, and to protect the water body for the propagation of a healthy, well- balanced population of fish and wildlife. Accordingly, TBD provided reasonable
78 assurances that the proposed discharge will meet the minimum water quality criteria in Rule 62-302.500(1).
242. TBD also has provided reasonable assurances the proposed discharge meets the general water quality criteria set forth in Rule 62-302.500(2).
DEP's proposed permit set effluent limitations according to applicable DEP rules based on site-specific conditions. See Findings 169-180, supra.
Moreover, the proposed permit specifically addresses the processes and procedures applicable to monitoring, sampling, testing, and reporting all effluent constituents for which limits have been set, in compliance with Rule
62-302.500(2).
243. TBD provided reasonable assurance that it will meet the Class III marine water quality standards and criteria outlined in Rule 62-302.530. As found, permit effluent limits have been established for parameters for which the discharge levels may approach the water quality standard thresholds, and those effluent constituents must be monitored and reported as specified in the permit.
244. With respect to DO, Rule 62-302.530(31) contains DO water quality criteria and requires that the "actual DO shall not average less than 5.0 in a
24 hour period and shall never be less than 4.0." TBD demonstrated that the desalination plant discharge will not lower the DO levels present in the intake water coming into the desalination plant, and will actually increase DO levels in the discharge water when levels are below 5.7 mg/l. See Findings 85, 129-
137, supra. Even if the levels for DO for the intake water did not meet the numeric criteria for DO in Rule 62-302.530(31), the desalination plant discharge would not violate the water quality standards for DO. Rule 62-
302.300(15) is a water quality standard which states:
Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having a water
79 quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions.
The natural condition referred to in Rule 62-302.300(15) is the intake water to the desalination facility. Rules 62-302.530(31) and 62-302.300(15) should be read in harmony. So read, the proposed permit's effluent limitations prohibit violation of water quality standards because they prohibit any discharge that would cause or contribute to an existing violation of state water quality standards. Moreover, by the terms of Rule 62-302.300(15), TBD cannot legally be required to abate natural background conditions.
Chapter 62-650 245. Chapter 62-650 establishes the circumstances under which permit applicants may be required to conduct a comprehensive water quality data collection study for purposes of setting water quality based effluent limitations ("WQBELs"). As part of the permitting process, DEP required TBD to conduct a WQBEL Level II study for purposes of establishing a WQBEL for salinity. TBD complied with all applicable requirements in conducting the
WQBEL Level II study. The WQBEL study and water quality modeling established a
35.8 ppt maximum salinity for the proposed permit. The 35.8 ppt limitation will not cause any adverse impacts; in addition, the permit contains a 10 percent chloride effluent limitation and limits the discharge by the lower of the two effluent limitations. Accordingly, TBD provided reasonable assurance that it meets all applicable requirements of Chapter 62-650.
Chapter 62-660 246. No federal effluent limitations have been established under the
Clean Water Act for reverse osmosis plants. Rule 62-660.400(1)(e). DEP established conservative minimum dilution ratio requirements to provide reasonable assurance that no water quality standards would be violated.
Moreover, DEP established a water quality based effluent limitation for salinity in the permit based on the present and future conditions of the water
80 body as determined by modeling, and also based on the nature, volume, and frequency of the proposed discharge, including any potential synergistic effects with other pollutants that may be in the receiving water body. Thus, reasonable assurances have been provided that all applicable provisions and requirements in Chapter 62-660 have been met.
V. TEC Permit Modification
247. When a permittee seeks to modify an already existing permit, regulatory review includes only that portion of the permit modified in the proposed revision. Rule 62-620.325(1)(f). All other requirements and conditions contained within the permit unaffected by the modification remain in effect until the permit expires. Here, in essentially what amounts to nothing more than a piping change, TEC is not undertaking any activities which will modify TEC's discharge or the operation of the power plant at TEC's Big Bend site. Accordingly, TEC's permit modification does not trigger the "new source" or "new discharge" provision contained Rule 62-620.200(29) or the "Best
Available Technology" and "Best Practicable Technology" provisions within
Section 306 of the Federal Water Pollution and Prevention Control Act.
Because TEC provided reasonable assurances that its modification to the cooling water system will not discharge or cause pollution in violation of Chapter 403,
Florida Statutes, or other applicable DEP rules, TEC satisfied all criteria and procedures contained in Rule 62-620.320(1).
W. TEC's Request for Attorney Fees and Costs
248. Post-hearing, TEC moved for attorney fees and costs under Section
120.595(1), which provides in pertinent part:
(a) The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings. (b) The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only where the nonprevailing adverse party has
81 been determined by the administrative law judge to have participated in the proceeding for an improper purpose. (c) In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection and s. 120.569(2)(e). In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose. (d) In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney's fees. (e) For the purpose of this subsection: 1. "Improper purpose" means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity.
(Emphasis added.) There is no evidence or indication that the rebuttable presumption of improper purpose created by Section 120.595(1)(c) applies in this case.
249. The "definition" of improper purpose in Section 120.569(2)(e) is not identical to the definition in Section 120.595(1)(e)1. Section 120.569(2)
(e) provides that signatures on pleadings, motions, or other papers certify that the signatory has read the document and that "based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation."
250. Construing the definition in Section 120.595(1)(e)1 in pari materia with the "definition" in Section 120.569(2)(e), it is concluded that Section
120.595(1) only references the examples of improper purposes cited in Section
120.569(2)(e), but that participation in a proceeding is for an improper purpose under Section 120.595(1) only if it is "primarily to harass or to cause
82 unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity." (If such a limitation on the definition is not part of Section 120.569(2)(e), Section 120.595(1)(a) provides that its provisions are "supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings.")
251. Case law holds that an objective standard is used to determine improper purpose for the purpose of imposing sanctions on a party or attorney under Section 120.569(2)(e) and predecessor statutes. As stated in Friends of
Nassau County, Inc. v. Nassau County, 752 So. 2d 42, 49-51 (Fla. 1st DCA 2000):
In the same vein, we stated in Procacci Commercial Realty, Inc. v. Department of Health and Rehabilitative Services, 690 So. 2d 603 (Fla. 1st DCA 1997): The use of an objective standard creates a requirement to make reasonable inquiry regarding pertinent facts and applicable law. In the absence of "direct evidence of the party's and counsel's state of mind, we must examine the circumstantial evidence at hand and ask, objectively, whether an ordinary person standing in the party's or counsel's shoes would have prosecuted the claim." Id. at 608 n. 9 (quoting Pelletier v. Zweifel, 921 F.2d 1465, 1515 (11th Cir.1991)). See In re Sargent, 136 F.3d 349, 352 (4th Cir.1998) ("Put differently a legal position violates Rule 11 if it 'has "absolutely no chance of success under the existing precedent." ') Brubaker v. City of Richmond, 943 F.2d 1363, 1373 (4th Cir.1991)(quoting Cleveland Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984, 988 (4th Cir.1987))."[)]
* * *
Whether [predecessor to Section 120.595(1)] section 120.57(1)(b)5., Florida Statutes (1995), authorizes sanctions for an initial petition in an environmental case turns . . . on the question whether the signer could reasonably have concluded that a justiciable controversy existed under pertinent statutes and regulations. If, after reasonable inquiry, a person who reads, then signs, a pleading had "reasonably clear legal justification" to proceed, sanctions are inappropriate. Procacci, 690 So. 2d at 608 n. 9; Mercedes, 560 So. 2d at 278.
Although there is no appellate decision explicitly extending the objective standard to Section 120.595(1), there does not appear to be any reason why, absent the rebuttable presumption, the objective standard should not be used to determine whether participation in a proceeding was for an improper purpose.
83 See Friends Of Nassau County, Inc., v. Fisher Development Co., et al., 1998 WL
929876 (Fla. Div. Admin. Hrgs.); Amscot Insurance, Inc., et al. v. Dept. of
Ins., 1998 WL 866225 (Fla. Div. Admin. Hrgs.).
252. In another appellate decision, decided before the objective standard was enunciated for cases under Section 120.569(2)(e) and its predecessor statutes, the court in Burke v. Harbor Estates Ass'n, 591 So. 2d
1034, 1036-1037 (Fla. 1st DCA 1991), held:
The statute is intended to shift the cost of participation in a Section 120.57(1) proceeding to the nonprevailing party if the nonprevailing party participated in the proceeding for an improper purpose. A party participates in the proceeding for an improper purpose if the party's primary intent in participating is any of four reasons, viz: to harass, to cause unnecessary delay, for any frivolous purpose, [FN1] or to needlessly increase the prevailing party's cost of securing a license or securing agency approval of an activity.
Whether a party intended to participate in a Section 120.57(1) proceeding for an improper purpose is an issue of fact. See Howard Johnson Company v. Kilpatrick, 501 So. 2d 59, 61 (Fla. 1st DCA 1987) (existence of discriminatory intent is a factual issue); School Board of Leon County v. Hargis, 400 So. 2d 103, 107 (Fla. 1st DCA 1981) (questions of credibility, motivation, and purpose are ordinarily questions of fact). The absence of direct evidence of a party's intent does not convert the issue to a question of law. Indeed, direct evidence of intent may seldom be available. In determining a party's intent, the finder of fact is entitled to rely upon permissible inferences from all the facts and circumstances of the case and the proceedings before him.
FN1. A frivolous purpose is one which is of little significance or importance in the context of the goal of administrative proceedings. Mercedes Lighting & Electrical Supply, Inc. v. Department of General Services, 560 So. 2d 272, 278 (Fla. 1st DCA 1990).
253. Burke also is of interest because of how its facts compare to the facts of this case. According to Burke, the hearing officer found:
6. Petitioner . . . submitted no evidence to show facts necessary to sustain the pleadings in the Petition. . . . Petitioner offered no expert testimony in support of the pleadings in the Petition. . . . The testimony of fact witnesses called by Petitioner was not material to Petitioner's claims. . . . 7. Petitioner consistently demonstrated a lack of knowledge of the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence. Petitioner repeatedly attempted to establish violations of laws not relevant to the
84 proceeding. . . . Petitioner attempted to establish issues by arguing with witnesses during direct and cross-examination, and by repeatedly making unsworn ore tenus representations of fact. 8. There was a complete absence of justiciable issue of either law or fact in this proceeding because petitioner failed to show facts necessary to sustain the pleadings. Petitioner presented no evidence refuting Respondent, Burke's, showing that the modifications required by DER were adequate to assure water quality and the public health, safety, or welfare, or the property of others. Evidence presented by Petitioner was not material to the issue of whether the modifications required by DER were adequate for the purposes of the law applicable to this proceeding. Therefore, Petitioner participated in this proceeding for a frivolous purpose, primarily to cause unnecessary delay, or to needlessly increase the cost of licensing or approval of the proposed activity.
Id. at 1035-1036. (For reasons unknown, there are minor discrepancies between the court's version of the findings and those appearing at Harbor Estates
Associates, Inc. v. E. Burke, et al., 1990 WL 749394 (Fla. Div. Admin. Hrgs.), and at DOAH's Internet website, Recommended Order, DOAH Case No. 89-2741, entered April 4, 1990.) In Burke, the Department of Environmental Regulation
(predecessor to DEP) accepted the hearing officer's findings as to Petitioner's conduct but reversed the hearing officer's award, holding "that the conduct described in the recommended order cannot, as a matter of law, evince an improper purpose as defined in Section 120.59(6), Florida Statutes." Burke at
1037. The court reversed, holding that DER's characterization of the evidence as "mere 'incompetent representation'" by a lay person. Id. at 1037-1038.
254. The facts of this case are easily distinguished from those in
Burke, which demonstrate much more egregious behavior. There was no evidence that SOBAC repeatedly attempted to establish violations of laws not relevant to the proceeding (although counsel for SOBAC did have to be reminded of earlier rulings on several occasions). To the contrary, SOBAC accepted and reacted appropriately to adverse rulings. SOBAC's counsel did not argue with witnesses or repeatedly made unsworn ore tenus representations of fact during direct and cross-examination of witnesses. SOBAC did not consistently demonstrate a lack of knowledge of the applicable law, the proper scope of the administrative
85 hearing, or the distinction between argument and evidence. Finally, as found, while SOBAC suffered many adverse rulings, the issues it raised were justiciable, especially given the nature of the relationship of TEC's permit modification application to TBD's permit application.
RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Department of Environmental Protection enter a final order: (1) issuing the proposed permit number FL0186813-001-IWIS, as set forth in TBD Ex. 203 with the addition of the two permit conditions specified in TBD Ex. 470; (2) issuing proposed permit modification number
FL0000817-003-IWIS, as set forth in TBD Ex. 225; and (3) denying TEC's request for attorney's fees and costs from SOBAC under Section 120.595(1).
Jurisdiction is reserved to enter an order on TBD's Motion for Sanctions filed on August 13, 2001, regarding SOBAC expert Ralph Huddleston.
DONE AND ENTERED this 17th day of October, 2001, in Tallahassee, Leon
County, Florida.
______J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2001.
COPIES FURNISHED:
W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
William S. Bilenky, Esquire
86 Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604
Ralf G. Brookes, Esquire Morgan & Hendrick 1217 East Cape Coral Parkway Suite 107 Cape Coral, Florida 33904-9604
Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761-3930
Lawrence N. Curtin, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Post Office Box 810 Tallahassee, Florida 32302-0810
Douglas P. Manson, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543
E. A. Seth Mills, Jr., Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Post Office Box 1438 Tampa, Florida 33601-1438
Joseph D. Richards, Esquire Pasco County Attorney's Office 7530 Little Road, Suite 340 New Port Richey, Florida 34654-5598
Cathy M. Sellers, Esquire Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 118 North Gadsden Street Tallahassee, Florida 32301-1508
Linda Loomis Shelley, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. Post Office Box 11240 Tallahassee, Florida 32302
Kathy C. Carter, Agency Clerk Office of General Counsel
87 Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building 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.
88