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10/01/2015 Agreementd � w STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MIKE LAUDICINA and DON DEMARIA, Individual Petitioners, vs. FLORIDA KEYS AQUEDUCT AUTHORITY and STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents, and MONROE COUNTY, FLORIDA Intervener. Case No. 15-1233 STIPULATED SETTLEMENT AGREEMENT THIS STIPULATED SETTLEMENT AGREEMENT ("Settlement Agreement") is entered into by and among the State of Florida, Department of Environmental Protection ("DEP"), the Florida Keys Aqueduct Authority ("FKAA"), Monroe County, Florida ("County"), Mike Laudicina and Don DeMaria (the "Individual Petitioners") (collectively, the "Settling Parties"), as a complete and final settlement of all claims raised in the above -styled proceedings. RECITALS WHEREAS, on September 21, 2009, DEP issued to FKAA a certain Domestic Wastewater Facility Permit for the Cudjoe Regional Wastewater Treatment Plant (the "Plant") including underground injection wells, Permit No. FLA671932-001 and UIC Permits Nos. 295404-001, -002, -003 and -004 (collectively, the "2009 Permits"); and, WHEREAS, on July 14, 2014, DEP issued a Notice of Intent to Issue Wastewater Treatment Permits for the Plant, proposed Permit No. FLA671932-003-DWIP and UIC Permits Nos. 295404-020, -021, -022, and -023 (collectively, the "2014 Permits"); and, WHEREAS, on February 24, 2015, the Individual Petitioners filed a second amended petition for formal administrative hearing on the compliance of the 2009 Permits and the 2014 Permits with applicable state law; and, WHEREAS, the Cudjoe Gardens Property Owners Association and the Sugarloaf Shores Property Owners Association (collectively, the "POA Petitioners") also filed various amended petitions; and, WHEREAS, on March 11, 2015, DEP referred the Individual Petitioners' and the POA Petitioners' petitions to the Division of Administrative Hearings ("DOAH"), where they were collectively assigned Case No. 15-1233; and WHEREAS, in addition to the claims in their various DOAH petitions (the "DOAH Claims"), the Individual Petitioners have asserted additional claims against FKAA and others as reflected in communications dated March 11, 2015, June 18, 2015, and June 19, 2015 (the "Additional Claims"); and, WHEREAS, FKAA, DEP, and the County dispute the allegations of the Individual Petitioners' DOAH Claims and Additional Claims; and, WHEREAS, Individual Petitioners dispute the allegations of FKAA, DEP, and the County; and, WHEREAS, the Individual Petitioners' trial counsel has recently become ill and obtaining and preparing substitute counsel may delay resolution of this matter; and, WHEREAS, the Settling Parties wish to avoid the expense, delay, and uncertainty of lengthy litigation and to resolve this proceeding under the terms set forth herein, and agree it is in their respective mutual best interests to do so; NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and in consideration of the benefits to accrue to each of the Settling Parties, the receipt 2 and sufficiency of which are hereby acknowledged, the Settling Parties hereby represent and agree as follows: 1. Subsequent to the Individual Petitioners' assertion of the DOAH Claims and the Additional Claims, the Settling Parties conferred and agreed to resolve all of those claims through this Settlement Agreement. It is the intent of this Settlement Agreement to resolve fully all pending issues between the Settling Parties. 2. Composite Exhibit A to this Settlement Agreement consists of a copy of the Individual Petitioners' second amended petition alleging the DOAH Claims, and copies of the communications dated March 11, 2015, June 18, 2015, and June 19, 2015, alleging the Additional Claims. Exhibit A is incorporated into and made part of this Settlement Agreement. 3. Exhibit B to this Settlement Agreement consists of a Notice of Draft Permit that DEP issued on August 12, 2015, concerning draft Permit No. 3 3 6267-00 1 -UC/5W for construction and testing of a deep injection well at the Plant. Exhibit B is incorporated into and made part of this Settlement Agreement. 4. FKAA agrees to continue expeditiously and in good faith its efforts to complete the permitting and construction of the deep well at the Plant. a. FKAA represents that the design of the deep well has been completed, and that FKAA currently is in the process of competitively selecting the contractor to complete the deep well. FKAA reasonably believes the construction will commence before the end of 2015, and the deep well will be completed before the end of 2016 (barring unforeseen conditions outside FKAA's control). b. FKAA stipulates to expeditious completion of the deep well and to its use as the only primary means of disposal of treated effluent from the Plant, as soon as the deep well is permitted for operational testing. FKAA agrees that it will not seek to use the 2009 Permits or the 2014 Permits for primary disposal of effluent after the deep well is in operation and will not seek renewal of the 2014 Permits to authorize use of the shallow wells as the primary means of disposal. In any use of the shallow wells, on an interim basis pending completion of the deep well or thereafter as backup facilities, FKAA agrees to comply with the maximum disposal limits of the 2014 Permits, even though they are more restrictive than the requirements of the 2009 Permits. FKAA stipulates and agrees to construct and operate the deep well in compliance with new permits that it expects DEP will issue as expeditiously as possible. As further evidence of its good faith intention to expeditiously complete and operate the deep well as the Plant's sole method of primary disposal of effluent, FKAA stipulates that in its use of the shallow wells on an interim basis pending completion of the deep well FKAA will not exceed fifty percent (50%) of the permitted flow rate under the 2009 Permits. 5. The County stipulates to continue expeditiously and in good faith its financing of the deep well at the Plant and stipulates that the funding is in place. 6. DEP agrees to exercise its best reasonable efforts to expedite the review of the permit application for the deep well. 7. The Individual Petitioners release and agree not to later assert any claims or arguments that are presently asserted in the DOAH Claims or the Additional Claims, except as may be asserted in an action to enforce this Settlement Agreement in accordance with paragraph 20 of this Settlement Agreement, or as may be re -asserted in a challenge to the 2014 Permits if this matter is re -referred to DOAH after being held in abeyance in accordance with paragraph 17 of this Settlement Agreement. 8. The Settling Parties enter into this Settlement Agreement in the spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of the permits that are the subject of the DOAH Claims or the Additional Claims. The acceptance of settlement terms for purposes of this Settlement Agreement is part of a negotiated agreement affecting many factual and legal issues and is not an endorsement of, and does not establish precedent for, the use of these terms in any other circumstances. 4 9. Nothing in this Settlement Agreement shall be construed to relieve any of the Settling Parties from adhering to the law. 10. Nothing in this Settlement Agreement shall be deemed to affect the rights of any person not a party to this Settlement Agreement. This Agreement is not intended to benefit any third party, including but not limited to the POA Petitioners. 11. Each of the Settling Parties shall bear its own costs, including attorney fees, incurred in connection with the above -captioned proceedings and this Settlement Agreement. 12. No Settling Party or its prior or current counsel will seek attorneys' fees, costs or sanctions against any other Settling Party or its prior or current counsel with respect to the events that have occurred up to the effective date of this Settlement Agreement. By the terms of this Settlement Agreement, each Settling Party and its prior or current counsel intends to fully release each other Settling Party and its prior or current counsel from all claims related to this matter which could have been asserted by any Settling Party against the other or against prior or current counsel up to the effective date of this Settlement Agreement; provided, however, that notwithstanding anything to the contrary in this Settlement Agreement, DEP does not release FKAA from any permit compliance requirements. 13. This Settlement Agreement shall become effective immediately upon the date of execution by an authorized representative of the last Settling Party. 14. Within seven days after the effective date of this Settlement Agreement, the Settling Parties shall file a joint motion with DOAH to relinquish jurisdiction over the Individual Petitioners' second amended petition to DEP, for action consistent with this Settlement Agreement. 15. Within seven days after DOAH relinquishes jurisdiction over the Individual Petitioners' second amended petition, the Settling Parties other than DEP will jointly request that DEP enter a final order dismissing the Individual Petitioners' second amended petition, with prejudice and without leave to amend, but only insofar as the second amended petition directly challenges the 2009 Permits. The requested final order will confirm the issuance of the 2009 5 Permits, without revision, as final agency action, but will otherwise preserve jurisdiction over the Individual Petitioners' second amended petition, without prejudice to their right to demand referral back to DOAH pursuant to paragraph 17 below. The Individual Petitioners and their counsel waive and release any further administrative challenges and judicial appeals of the 2009 Permits. 16. Except for the portions that are dismissed by final order as provided in the preceding paragraph, the Settling Parties will jointly request that DEP hold in abeyance any further action with respect to the Individual Petitioners' second amended petition. The Settling Parties will also jointly request that DEP hold the second amended petition in abeyance until the deep well is completed and in operation, at which time the Settling Parties other than DEP will jointly request that DEP enter a final order dismissing the remainder of the Individual Petitioners' second amended petition, with prejudice and without leave to amend. If and when DEP dismisses the second amended petition in accordance with this paragraph, the Individual Petitioners and their counsel waive and release any further administrative challenges and judicial appeals of the 2014 Permits. Counsel for DEP joins in these requests, but counsel's position is not binding on DEP in its consideration of a final order. 17. If the Individual Petitioners reasonably and in good faith believe that FKAA is not proceeding with construction and operation of the deep well in substantial compliance with the terms of this Settlement Agreement, or that the County is not proceeding with funding therefor, then the Individual Petitioners may demand that DEP refer their second amended petition back to DOAH. FKAA and the County agree not to oppose the demand. 18. All of the Settling Parties to this Settlement Agreement, and their counsel, are deemed to have participated in its drafting. In the event of any ambiguity in the terms of this Settlement Agreement, the Settling Parties agree that such ambiguity shall be construed without regard to which of the parties drafted the provision in question. 19. This Settlement Agreement is not intended to bind DEP, FKAA, or the County in the exercise of governmental discretion which is exercisable in accordance with law upon the on giving of appropriate public notice and required public hearings. However, to the extent that the exercise of such discretion is deemed by the Individual Petitioners to violate the terms of this Settlement Agreement, the Individual Petitioners may seek relief pursuant to paragraph 20 of this Settlement Agreement. 20. Any action in law or equity for the enforcement or breach of this Settlement Agreement shall be litigated in the circuit court for Monroe County, Florida. In any such action, the Settling Parties waive any right to jury trial they may have. This paragraph 20 does not apply to, or in any way restrict, the Individual Petitioners' right to demand referral of their second amended petition back to DOAH pursuant to paragraph 17 above. 21. This Settlement Agreement may be executed in any number of originals, all of which evidence one agreement, and only one of which need be produced for any purpose. 22. This is the entire agreement between the parties and no verbal or written assurance or promise is effective or binding unless included in this Settlement Agreement. In witness whereof, the parties hereto have caused this Settlement Agreement to be executed by their undersigned officials as duly authorized. STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION By: , J oemgc-r-- /, zols- -D1¢c2rcx- a.r Asjn,4cr- A4A ,AC-,�.ovi" Date Approved as to for nd le ality: �6-eiem FLORIDA KEYS AQUEDUCT AUTHORITY By: ^� X Appr s t an I aality: MONROE COUNTY, FLORIDA Approved as to form and legality: MIKE LAUDICINA DON DF.MARIA CHRISTOPER T. BYRD Attorney for Individual Petitioners CARON BALKANY Personal Counsel for Individual Petitioners 8 Date Date Date Date Date Date Date Approved as to form and legality: MONROE COUNTY./FLO By: Ifil\ l U - -)' . Robert B. Shil nger, Jr. Date County Attorney Approved as to form and legality: /0 - 20 MIKE LAUDICINA Date DON DEMARIA Date CHRISTOPER T. BYRD Date Attorney for Individual Petitioners CARON BALKANY Date Personal Counsel for Individual Petitioners Approved as to farm and legality, MONROE COUNTY, FLORIDA 0 Approved as to form and legality: h-4& 44yxe� - - MIKE LAUDICINA DONDEMARIA CDRI$TOPER T. BYRD Attorney for Individual Petitioners Date Date Q -- 2 sr-15r Date Date Date CARON BALICANY Date Personal Counsel for Individual Petitioners 8 z0/ZO 39dd lI:JNIMOM 6b9EZLBSOE S0:0Z 9tOZ/BZ/60 Sep 27 15 06:47p DeMaria 305-745-1235 Approved as to form and legality: MONROE COUNTY, FLO RIDA By: Approved as to form and legality: MIKE LAUDICINA DON DEMARIA CHRISTOPER T. BYRD Attorney for Individual Petitioners CARON BALKANY Personal Counsel for Individual Petitioners Date Date Date Date Date Date Approved as to form and legality: MONROE COUNTY, FLORIDA Approved as to form and legality: MIKE LAUDICINA DON DEMAR�IA (� Cn'"� ' • 1 CHRISTOPER T. BYRD Attorney for Individual Petitioners CARON BALKANY Personal Counsel for Individual Petitioners Date Date Date Date 09 25 15 Date Date Approved as to form and legality: MONROE COUNTY, FLORIDA 1-3 Approved as to form and legality: MIKE LAUDICINA DON DEMARIA CHRISTOPER T. BYRD Attorney for Individual Petitioners Date Date Date Date Date CARON BALKANY Date Personal Counsel for Individual Petitioners 8 EXHIBIT A • Individual Petitioners' Second Amended Petition • Letter from Balkany and Byrd to Jewel et al. dated March 11, 2015 • Letter from Balkany and Byrd to McCarthy et al. dated June 18, 2015 (w/o exhibit) • Letter from Balkany and Byrd to Bigham et al. dated June 19, 2015 STATE OF FLORIDA RECEIVED DEPARTMENT OF ENVIRONMENTAL PROTECTION Feb 24, 201 5 1 Dept. of Environmental Protection MIKE LAUDICINA and DON DEMARIA, Office of General Counsel Petitioners, DER FILE No. FLA671932-003-DWiP; DEP PROPOSED PERMIT #: FLi4671932-003-DWIP; DEP UIC PERMIT # 295404-020, 021, 0222, 023; (prior DEP No. FLA671932-001, 295404-001, 0OZO03, and 004) FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, and FLORIDA KEYS AQUEDUCT AUTHORITY (Applicant), Respondents. SECOND AMENDED PETITION FOR FORMAL ADMINISTRATIVE HEARING 1. Petitioners, Mike laudicina (Laudicina) and Don DeMaria (DeMarla) file this Second Amended Petition for a Formal Administrative Hearing concerning the July 14, 2014 Notice of Intent to Issue Renewal of Wastewater Treatment Permit for Cudjoe Regional Wastewater Treatment Plant (Plant) by the State of Florida Department of Environmental Protection (FDEP) upon application of Florida Keys Aqueduct Authority (FKAA). 2. Petitioners filed a Petition for Formal Administrative Hearing on July 25, 2014 and an Amended Petition on January 29, 2015. This Second Amended Petition is filed in response to an OGC order of dismissal with leave to amend entered February 12, 2015, and is intended to relate back to the filing date of the original Petition. 1 Attachment VI PARTIES 3. Petitioners seek review of the 2009 original permit allowing construction and operation of the Cudjoe wastewater treatment Plant and the four UIC 2009 permits allowing construction of four shallow Class V injection wells, as well as review of the 2014 proposed permit which allows renewal of the operation permit for the wastewater treatment Plant and also permits first-time operation of the four shallow wells. The agency, FDEP, has a mailing address of PO Box 2549, Ft. Myers, FL 33902-2549. The applicant, FKAA, has a mailing address of 1100 Kennedy Drive, Key West, Florida 33040. 4. Petitioners assert standing pursuant to Chapter 120 Florida Statutes, Chapter 62, F.A.C., and Chapter 403, Florida Statutes. Petitioners' substantial interests are directly, immediately and adversely affected because the activities being permitted by the Department upon application of FKAA are in violation of Florida Statutes and Department regulations and will impermissibly degrade and impair the surface waters of the Lower Florida Keys, the Florida National Marine Sanctuary (Sanctuary) and designated Outstanding Florida Waters (OFW), as well as endanger the federally protected coral reefs, sea turtles, migratory birds, protected sea grasses and other local fauna and flora. The proposed agency action also would adversely affect the businesses and quality of life of Petitioners, including their recreational, aesthetic, and economic interests, as set forth with specificity for each Petitioner below. 5. Petitioner, Mike Laudicina, whose mailing address is P.O. Box 430411, Big Pine Key, FL 33043, is a resident of Big Pine Key, Florida within the area served and affected by Attachment VI by the proposed agency action. The shallow injection wells will allow partially treated effluent and contaminated groundwater to rise to the surface waters, where the quantity and salinity of the effluent, as well as the nutrients present in the effluent, will cause or contribute to algal mats; decreased visibility in the waters; shadowing and decreased oxygen, all of, which will adversely impact the benthic organisms that support the fisheries used by Petitioner; and will cause other adverse effects to the water resources and marine life resources of the State of Florida regularly used by Petitioner. He is a commercial fisherman and regularly works and recreates on the waters around Cudjoe Key. Don DeMaria is also actively involved in environmental research issues, assisting in benthic surveys and coral transplantation projects (1978 to present) and does business and is the owner of a company doing business as Sea Samples, a commercial physical research company located in Summerland Key, Florida that collects invertebrates from marine waters of the United States and Caribbean for the National Cancer Institute (2001 to 2014). Don DeMaria is a part time research assistant for the Coral Reef Research Foundation. His work includes collecting and photographing marine invertebrates for the National Cancer Institute (1992 to 2014) and work as a part time research assistant for scientists at universities and the National Marine Fisheries Service. Don DeMaria has assisted other organizations on various fishery research projects including Fish and Wildlife Research Institute (State of Florida), the National Marine Fisheries Service, Caribbean Marine Research Center, Teens4Oceans, and National Geographic Society. The proposed action will devalue the fish, spiny lobster and crabs which he regularly consumes and provides to family and friends, and will make them undesirable. The Attachment VI the proposed agency action. Mike Laudicina's substantial interests in environmental integrity will be directly, adversely and immediately affected by the proposed agency action. The shallow injection wells will allow partially treated effluent and contaminated groundwater to rise to the surface waters, where the quantity and salinity of the effluent, as well as the nutrients present in the effluent, will cause or contribute to algal mats; decreased visibility in the waters; shadowing and decreased oxygen, all of which will adversely impact the benthic organisms that support the fisheries used by Petitioner; and will cause other adverse effects to the water resources and marine life resources of the State of Florida regularly used by Petitioner. He is a commercial fisherman who regularly harvests crab and lobster from the near shore waters around the Plant. He also snorkels, crabs, and fishes the area for recreation. He has lived in Monroe County for over 40 years, and has served on the Florida Keys National Marine Sanctuary Advisory Council for nine years and the Gulf of Mexico Spiny Lobster Advisory Council for many years, and has frequently worked for, and collaborated with, numerous marine scientists conducting research in the Lower Florida Keys. The proposed action will devalue the fish, spiny lobster and crabs which he regularly consumes, provides to family and friends, and sells and will make them undesirable. The proposed agency action will also make the waters utilized by Petitioner visually and aesthetically unpleasant, and interfere with his use and enjoyment of the waters. He is represented by undersigned counsel. 6. Petitioner, Don DeMaria, whose address is 369 Westshore Drive, P.O. Box 420975, Summerland Key, Florida lives within five miles of the Plant. Don DeMaria's substantial interests in environmental integrity will be directly, adversely and immediately affected Attachment VI proposed agency action will also make the waters utilized by Petitioner visually and aesthetically unpleasant, and interfere with his use and enjoyment of the waters and adversely impact the marine invertebrates he collects and sells for scientific research. Don DeMaria is represented by undersigned Counsel. PERMITTING HISTORY 7. The original UIC applications for the four shallow injection wells were filed on March 20, 2009. They were applications to construct and test the wells, not to operate them. 8. The original wastewater treatment plant application Form 2A was filed April 20, 2009, and indicated that "...UIC permits submitted concurrent." 9. The original permit was issued September 21, 2009, allowing both construction and operation of the Plant, but only construction, not operation, of the wells. 10. On March 20, 2014, FKAA filed a renewal Form 2A application, but neglected to file UIC applications to operate the wells. 11. On April 7, 2014, FDEP reminded FKAA that it needed to file concurrent UIC applications "for each well that it wished to operate." 12. On May 1, 2014, FKAA submitted four UIC well operation applications for the first time. 13. On June 14, 2014, FKAA submitted revised UIC well operation applications after further inquiry from FDEP. Attachment VI 14. On July 14, 2014, FDEP issued the proposed intent to issue renewed operating permit for the wastewater treatment plant and first-time operating permits for the four shallow wells. 15. An Order of Dismissal of the Amended Petition issued by the Office of General Counsel on February 12, 2015 indicates that the UIC permits are renewal permits. Petitioners disagree. Although FKAA had applied for a renewal permit to construct and operate the Plant, and, after reminders from FDEP, for first-time operating permits for the wells, the draft permit does not appear to be a renewal permit because it authorizes operation of the wells for the first time. Previous applications for the wells filed in 2009 requested authorization only to construct the wells, not to operate them. 16. In an abundance of caution, however, Petitioners challenge the four UIC permits as original permits under Chapter 403 Florida Statutes and Chapter 62, F.A.C. or, in the alternative, as renewal permits; challenge the proposed permit to operate the Plant as a renewal permit under Sec. 62-620.335, F.A.C; and also challenge the original 2009, permit under Chapter 403, Florida Statutes and Chapter 62, F.A.C. BACKGROUND FACTS 17. The proposed permits would be the culmination of a multi -decades $180 million - plus project designed to clean up the waters of the Florida Keys from the onsite pollution of thousands of septic tanks and small on -site treatment plants. Cudjoe Regional will collect the wastewater from a population of 14,000 people and commercial and industrial Attachment VI establishments spread out over this 14 mile stretch of the island chain and then treat it to Advanced Wastewater Standards (AWT). 1 18. However, the proposed permits would then concentrate the discharge of this huge volume of wastewater in shallow wells in a small 225 foot long stretch of porous limestone approximately 75 feet from the mangroves fringing Cudjoe Basin and the designated Outstanding Florida Waters within the Florida Keys National Marine Sanctuary. Sec. 62-302.700, F.A.C. Z 19. According to FKAA's permit applications, the volume of wastewater effluent injected into the shallow wells will be at least 30 million gallons per month. According to FKAA's consultants and Petitioners' experts, the volume of effluent will exceed even these projections. 20. The four shallow wells are all drilled to 120 feet below ground surface into porous limestone and are cased to 80 feet. The Plant is located on a former Monroe County landfill on Cudjoe Key in Monroe County, Florida. The geological composition of the Florida Keys is a karst geology, characterized by conduits, voids and channels which allow the subsurface movement of water — including contaminants from the adjacent landfill - to flow quickly to the surface, strongly affected by tides and rain water recharge and by the injection of the proposed volume of less saline wastewater. ' AWT does not remove all nutrients, pharmaceuticals and other contaminants harmful to local waters. Z Both of these legal designations result in additional, especially protective water quality standards. Attachment VI 21. FDEP permitting engineers and geologists have acknowledged in a 2008 pre - application meeting with FKAA that shallow wells in the Keys frequently malfunction: "FDEP responded and stated that most shallow wells in the Florida Keys are only operational when the tide is receding. FDEP cited several plants with shallow wells that do not work." 22. The July 14, 2014 proposed permits would allow the four shallow injection wells to become operational for the first time. The Plant and wells are required to be designed to service the projected volume of wastewater from the service area for twenty years from onset of operation. STATEMENT OF ULTIMATE FACTS 23. Petitioners dispute the FDEP determination that FKAA has provided reasonable assurances that the project will comply with Chapter 403, Florida Statutes and with Chapter 62, F.A.C. Petitioners contend that the proposed permits violate Florida law and FDEP regulations based, inter alia, on two related issues of ultimate fact: 1. The injection of the proposed quantities of sewage effluent into shallow wells in the Outstanding Florida Waters of the Florida Keys National Marine Sanctuary will cause the partially treated sewage effluent and landfill -contaminated groundwater to reach surface waters, violate water quality standards and further degrade Sanctuary and Outstanding Florida Waters, all in violation of Chapter 403, Florida Statutes and Chapter 62, F.A.C. As a result, FDEP has no authority to issue permits for shallow wells for Cudjoe Regional. Only a deep well can be permitted. Attachment VI If. The design capacity of the Cudjoe Plant is 1 million gallons per day (mgd) or more and therefore a deep well is required by Florida law, regardless of a showing of impairment of water quality. Sec. 403.086(10)(e)2, Florida Statutes: "... if the design capacity of the facility is equal to or greater than 1 million gallons per day, each primary injection well must be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by department rule." The proposed agency action allowing the shallow wells will violate this statute. NOTICE OF AGENCY ACTION 24. The original permits for construction and operation of the Plant, and for construction of the four shallow wells, was issued September 21, 2009. No notice was provided by FKAA of the issuance of the proposed or final permit. See, infra, at pgs. 10 through 11. Notice of the agency action on the application for renewal permit for the Plant and first-time operating permits for the four shallow wells was uploaded by FDEP to its website (or Oculus) on or about July 14, 2014. The original Petition was filed within fourteen (14) days of July 14, 2014, and the Amended Petition and the Second Amended Petition relate back to that filing date. STATEMENT OF DISPUTED ISSUES OF MATERIAL FACTS 25. The limestone strata under Cudjoe Key and the principles of buoyant flow will allow the rapid movement of the partially treated less saline effluent to move to surface waters, in violation of Florida law as set forth with specificity below. 26. The shallow waters of Cudjoe Basin are easily impacted by the lower salinity of partially treated sewage effluent and by its nutrients such as nitrogen, ammonium, nitrate and phosphorus which, even with AWT, remain at levels which will cause exceedances of Attachment VI background levels in the near shore waters off Cudjoe Key, in violation of Florida law as set forth with specificity below. 27. Even slight increases in reactive forms of nitrogen and phosphorus can initiate harmful algal blooms in the shallow low -nutrient waters of the Florida Keys, adversely affecting sea grasses, corals, patch reefs and benthic organisms, and can result over time in a "dead zone." Federally protected threatened and endangered flora and fauna, including migratory birds protected under treaty, would be impermissibly impacted, as set forth with specificity below. 28. The organic wastewater compounds, including pharmaceuticals, hormones, and home care products, would pose additional environmental risks, as would the proposed handling of sludge and sewer materials from other plants. 29. Shallow well injection would also increase the gradient of the existing contaminated water from the former landfill adjacent to the Plant and would cause it to move into the surface waters of Cudjoe Basin and the wetlands on Cudjoe Key, violating Florida water quality standards and impermissibly impacting endangered and protected species, as set forth with specificity below. STATEMENT OF RULES AND STATUTES REQUIRING REVERSAL 30. Based on the foregoing Statement of Disputed Issues of Material Fact, the proposed agency action would violate the rules and statutes set forth below. Petitioners' Right to Challenge the Original Permit for the Operation of the Wastewater Treatment Plant issued September 21, 2009 Attachment VI 31. The Department initially issued a permit for the construction and operation of the Plant and for construction of the four shallow wells on September 21, 2009. FKAA did not provide the required notice of the proposed permit, in violation of Department regulations requiring that public notice of the proposed permit be published in a newspaper in Monroe County. Sec. 62-528.315, F.A.C. 32. In violation of FDEP rules, FKAA published the notice of intent to issue permit in the Sun Sentinel, published in Broward, Palm Beach, Lee and Dade Counties, but not in Monroe County, where the Plant and wells are located. 33. FKAA's actions violate Department rules regarding geographical location of the publication of notice. Sec. 62-110.106(5) F.A.C. Further, Sec. 62-110.106(11) F.A.C. provides that such a violation shall be "...an independent basis for the denial of the permit or other pertinent approval or authorization." 34. This violation renders the defective notice a nullity. Sec. 62-110.106 (9) F.A.C. provides in pertinent part: "Proof of Publication. Notice to substantially affected persons on applications for Department permits or other authorizations is an essential and integral part of the state environmental permitting process. Therefore, no application for a permit or other authorization for which published notice is required shall be granted until proof of publication of notice is made by furnishing a uniform affidavit in substantially the form prescribed in Sec. 50.051 of the Florida Statutes." (emphasis supplied) Attachment VI 35. The practical effect of this violation was that few, if any, of the residents in the service area affected by the Cudjoe Regional Plant and its shallow injection wells were aware of the 2009 permit until 2014, shortly before FKAA filed the 2014 application for renewal of the five year permit. 36. Petitioners never received notice of the proposed or final permit as defined by Sec. 62-110.106 (2), F.A.C, so their challenge, here, to the original permit is timely: "(2) "Receipt of Notice of Agency Action" Defined. As an exception to subsection 28-106.111(2), F.A.C., for the purpose of determining the time for filing a petition for hearing on any actual or proposed action of the Department as set forth below in this rule, "receipt of notice of agency action" means either receipt of written notice or publication of the notice in a newspaper of general circulation in the county or counties in which the activity is to take place, whichever first occurs..." 37. Violation of Secs. 62-110.106 (5) and (11) F.A.C. is also an unconstitutional denial of due process and an action difficult to justify since FKAA has its own offices in Monroe County and advertised its other legally required notices on a regular basis in the qualifying local paper. 38. FDEP had no authority to issue the original construction and operation permit for the Plant or the original construction permits for the four shallow wells because of FKAA's violation of due process and these Department rules. 39. The 2009 construction and operation permit for the treatment Plant and construction permits for the four shallow wells are therefore nullities, so the proposed 2014 renewal permit cannot be issued. Further, Petitioners should be allowed to challenge the 2009 permits on the merits, and do so in allegations 40-52, infra. Attachment VI Petitioners challenge the 2014 first-time UIC operating permits for the shallow wells and the 2009 original construction and operation permit for the Plant I. The injection of the proposed quantities of sewage effluent into shallow wells in the Outstanding Florida Waters of the Florida Keys National Marine Sanctuary would cause the partially treated sewage effluent and landfill -contaminated groundwater to reach surface waters, violate water quality standards and further degrade Sanctuary and Outstanding Florida Waters, all in violation of Chapter 403, Florida Statutes and Chapter 62, F.A.C. As a result, FDEP has no authority to issue permits for shallow wells for Cudjoe Regional. Only a deep well may be permitted. 40. The Florida legislature has clearly directed FDEP to protect Florida waters from violations of state water quality standards due to wastewater discharge. Florida Statute Sec. 403.086 (10) (h) 2 provides: "If it is demonstrated that a discharge, even if the discharge is otherwise in compliance with this subsection, will cause or contribute to a violation of state water quality standards, the department shall: 1. Require more stringent effluent limitations; 2. Order the point or method of discharge changed; 3. limit the duration or volume of the discharge; or 4. Prohibit the discharge." (emphasis supplied) 41. The proposed agency action permitting the disposal of effluent into the four shallow injection wells would violate state groundwater standards because the partially treated effluent would carry the less -saline effluent with its nutrient load and other contaminants to the surface waters where it would impair the reasonable and beneficial use of adjacent waters in violation of Sec. 62-520.400(1) F.A.C.: Attachment VI "All ground water shall at all places and at all times be free from domestic ... discharges in concentrations which, alone or in combination with other substances, or components of discharges ... (f) Impair the reasonable and beneficial use of adjacent waters."(emphasis supplied) 42. The partially treated less -saline sewage effluent would carry a nutrient load which will violate Surface Water Quality Criteria set forth in Sec. 62-302.530 (47) (b), F.A.C., including the narrative criteria for nutrients. "Nutrients. In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." 43. The partially treated sewage effluent would also violate the numeric nutrient criteria recently adopted for the Florida Keys by the State of Florida. Sec. 62-302.532, F.A.C. 44. The proposed agency action permitting the disposal of effluent into the four shallow injection wells would violate Sec. 62-602.302 F.A.C, which states: "(13) The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State. It shall be the Department's policy to limit the introduction of man -induced nutrients into waters of the State. Particular consideration shall be given to the protection from further nutrient enrichment of waters which are presently high in nutrient concentrations or sensitive to further nutrient concentrations and sensitive to further nutrient loadings. Also, particular consideration shall be given to the protection from nutrient enrichment of those waters presently containing very low nutrient concentrations: less than 0.3 milligrams per liter total nitrogen or less than 0.04 milligrams per liter total phosphorus." "(15) 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 Attachment V1 State and shall not be allowed. Waters having water quality below the criteria established for them shall be protected and enhanced. (emphasis supplied) (16) If the Department finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any Department rule or standard, it shall refuse to permit the discharge." 45. Because of the existing water quality impairment due to the landfill and other land based pollution, shallow well injection of still further contaminants and nutrients would violate Florida Statute Sec. 403.086 (10) (h) 2 and Florida Statute Sec. 403.061 (27) and more easily "tip the balance" from an impaired water body to a "dead zone." 46. The saline near shore waters around Cudjoe Key and Cudjoe Basin are shallow marine ecosystems that are designated Outstanding Florida Waters3 and thus are specially protected by Florida law. Florida law prohibits degradation of water quality in OFW such as Cudjoe Basin unless allowed by Sec. 62-4.242(2), F.A.C.: "Standards Applying to Outstanding Florida Waters. No Department permit or water quality certification shall be issued for any proposed activity or discharge within an Outstanding Florida Waters, or which significantly degrades, either alone or in combination with other stationary installations, any Outstanding Florida Waters, unless the applicant affirmatively demonstrates that **** (b). The 3 Sec. 62-302.700, F.A.C. states: "An Outstanding Florida Water (OFW) is a waterbody deemed worthy of special protection because of its natural attributes (e.g., excellent water quality, or exceptional ecological, social, educational, or recreational value)....Waters are designated OFW to prevent the lowering of existing water quality and to preserve the exceptional ecological and recreational significance of the waterbody.... OFWs are protected through more stringent requirements for activities requiring a permit from the Department of Environmental Protection (DEP)...." DEP Fact Sheet on Outstanding Florida Waters, DEP website. Attachment VI existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or discharge...." 47. The proposed agency action would impermissibly cause contaminants, nutrients, and the less saline effluent to further degrade these Outstanding Florida Waters. II. The proposed permit would violate Sec. 403.086 (10) (e) (2), Florida Statutes, by failing to require a deep well for this Plant which has a design capacity of 1 million gallons per day or more. 48. The design capacity of the Cudjoe Plant is 1 million gallons a day (mgd) or more and therefore a deep well is required by Florida law, regardless of a showing of a water quality impairment. Florida Statute Sec. 403.086(10) (e) (2) states, in pertinent part: "... if the design capacity of the facility is equal to or greater than 1 million gallons per day, each primary injection well must be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by department rule." 49. Sec. 62-600.200 (19), F.A.C. defines design capacity as follows: "Design capacity" means the average daily flow projected for the design year which serves as the basis for the sizing and design of the wastewater facilities. The design capacity is established by the permit applicant. The time frame associated with the design capacity (e.g., annual average daily flow, maximum monthly average daily flow, three-month average daily flow") shall be specified by the permit applicant." (emphasis added) 4 Annual Average Daily Flow is denoted as ("AADF"). Three Month Average Daily Flow is denoted as ("TMADF"). TMADF is the acronym for "...the Three -Month Rolling Average (Rolling Quarterly)... defined as the total volume of flow during a period of three consecutive months, divided by the number of days in this three-month period." Sec. 62-600.200(76), F.A.C. Attachment VI 50. The average daily flow for the Cudjoe Plant is 1mgd or more. Average daily flow is defined as: "... the total volume of wastewater flowing into a wastewater facility during some defined period of time, divided by the number of days in that period of time, expressed in units of mgd." Sec. 62-600.200 (9), F.A.C. 51. The design capacity for the Cudjoe Plant is 1mgd or more: a. FKAA has admitted that the wastewater flow to the Cudjoe Plant is in excess of 1mgd- b. FKAA's contractors designing the system have admitted that the wastewater flow to the Cudjoe Plant is in excess of 1mgd. C. FKAA's contractors building the system have acknowledged that the wastewater flow to the Cudjoe Plant is in excess of 1mgd. d. Sound wastewater principles of design and construction, as incorporated by reference in FDEP rules, indicate that the design capacity for the Cudjoe Plant is greater than 1mgd. Sec. 62-600.200 (19) F.A.C. 52. The proposed agency action violates and contradicts FDEP rules: a. FKAA's 2014 permit application, certified under FDEP regulations, is false, inaccurate, and incomplete, and the proposed agency action should not be based on it. Sec. 403.087 (7) (a) (c) and Sec. 403.161(1) (c) and (5), Florida Statutes. Attachment VI b. The documentation submitted by FKAA in support of its 2014 application is outdated and inaccurate, and the proposed agency action should not be based on it. Sec. 403.087 (7) (a) (c), Florida Statutes. C. If the Plant is only designed to handle .94mgd, as sometimes contended by FKAA, the Plant is undersized. Sec. 62-600.200 (19), F.A.C. d. FKAA did not use the correct standards for determining wastewater flow. Sec. 62-600.200 (19), F.A.C. e. The calculations used by FKAA to determine the volume of flow to the Plant are inaccurate and inappropriate and violate FDEP regulations. Sec. 62-600.200 (19), F.A.C. f. FKAA's water consumption data - from which design capacity calculations were derived - is unreliable so it does not "better estimate the flow" and cannot be relied on to design the Plant according to FDEP rules. Sec. 62-600.200 (19), F.A.C. 1. The Recommended Standards for Wastewater Facilities, 1994 edition (RSWF) is a technical guidance incorporated by reference into FDEP rules by Sec. 62-600.300 (1) F.A.C. for the design of the Plant and shall be applied unless FKAA provides reasonable assurances that its proposed design will meet the requirements of Chapter 62, F.A.C. and either it would be too expensive to comply with the standards or it's not technically feasible to comply because of site conditions. Attachment VI 2. Neither of these exceptions apply. Therefore, FDEP rules require FKAA to comply with RSWF, but it did not. 3. The water consumption data supplied by FKAA to its contractor, Brown and Caldwell, for the Plant's design flow calculations, and otherwise used in the design and construction of the Plant, is flawed. 53. Additionally, Petitioners challenge the stated intentions of FKAA, and any authorization issued by FDEP, to begin operation of the Plant during the pendency of this formal legal challenge to the proposed permit. The four UIC shallow well applications are first-time operation permits, not renewals, so they are not yet effective and operation under the original UIC permits — which were for construction only— is not permitted until final agency action and judicial review of this Second Amended Petition is complete. Sec. 62-620.335, F.A.C. Petitioners challenge the renewal application for operation of the wastewater treatment Plant under Sec. 62-620.335, F.A.C. 54. Sec. 62-620.335 (5), F.A.C. provides that the following is cause for denying a permit renewal: (b). "The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time." (emphasis supplied) a. FKAA's actions in publishing the 2009 proposed permit notice outside of Monroe County in violation of Sec. 62-110.106 (5), F.A.C. are grounds to deny the permit, Attachment VI even once a renewal application is filed. Sec. 62-620.335, F.A.C. FKAA's affidavit of proof of publication is a "misrepresentaton of relevant facts at any time" which significantly impaired the substantial constitutional rights of Petitioners and impacted the public's right to participate and challenge the Plant during the original application process. b. FKAA's actions in providing FDEP with only a draft technical report on influent design parameters — showing influent flow of .94million gallons per day (mgd) instead of the final technical report showing the flow to the Plant to be more then 1mgd - is a misrepresentation of relevant facts which warrants denial of the renewal permit. 1. The only engineering basis for FKAA's .94mgd AADF calculation is the 2008 Brown and Caldwell draft technical memo, the "flow and loads study." That draft technical memo was artificially limited by instructions from FKAA not to include certain consumers, resulting in a calculated .94mgd AADF.s 2. However, the final Brown and Caldwell technical memo issued 2009, two days after the original permit was filed, includes the major omitted consumer — Big Pine Key Shopping center — and states that the flow is 1.06mgd AADF. 3. There have been additional connections to the sewer system since 5 Brown and Caldwell was instructed by FKAA to eliminate the Region's major shopping center from the calculations for the original permit; this resulted in the initial .94mgd AADF calculation. Even the final tech memo may state a flow below that which the Plant will actually receive because it was issued before the probable addition of still further Cold spots such as Little Palm Island and Baypoint. Attachment VI that time, and more are contemplated, increasing the flow of the Plant even further. C. FKAA's false certification that the renewal application is true, accurate, and complete, when it is not, is a misrepresentation of relevant facts which warrants denial of the renewal permit. 1. FKAA failed to file with FDEP the very documents it and its contractors have generated and are using to build and design the Cudjoe system. Those documents indicate that the average annual daily flow to the Cudjoe Plant, and therefore its design capacity, will be greater than 1mgd.6 2. Nonetheless, FKAA's Executive Director certified that the 2014 application was true, correct and complete, when it was not. 3. FKAA supplied FDEP with only the draft influent flow technical memo from Brown and Caldwell which calculated the flow to the Plant at .94mgd AADF, but did not supply FDEP with the Brown and Caldwell final influent flow technical memo — which is in use by FKAA and which states the flow will be 1.06 mgd AADF. 6 These documents obviously indicate that a deep well is required by Florida Statute 403.086 (10)(e) (2) and are therefore important for agency review when considering the renewal permit application for the use of shallow wells. Attachment VI 4. FKAA's engineering department and its contractors building the Cudjoe collection/transmission system have been using the final Brown and Caldwell technical memo showing an average annual daily flow of 1.06 mgd since at least 2011-- and are still using it -- to build the system.' 5. Nonetheless, FKAA's renewal permit application directed FDEP to rely on the draft Brown and Caldwell technical memo dated September 26, 2008: "All supporting documentation required by Sec. 8 is the same as the original permit submittal...." 6. As far back as 2009, when FKAA received the Brown and Caldwell final technical memo stating 1.06 mgd AADF, (two days after the original permit application was filed) it had an obligation under the law and as a matter of good faith to update the original permit application for the treatment Plant while it was still under consideration by FDEP. 7. At the minimum, when FKAA filed its renewal permit application on March 17, 2014, five years later, after the final technical memo had been in use for at least three years, it had an obligation to supply the correct information. Because there is a separate permit application for each of the islands' collection/transmission systems, the total average annual daily flow from all of the islands was not provided to FDEP directly: it is 1.16mgd AADF. Attachment VI 8. In November, 2014, Petitioners asked FKAA to supplement its renewal application or to otherwise provide FDEP with the updated and final influent flow tech memo from Brown and Caldwell. FKAA refused. 9. Even if using the draft tech memo instead of the final technical memo in its 2014 permit application had been an oversight, FKAA's refusal to correct the omission was intentional. The renewal permit application, certified under FDEP regulations, is false, inaccurate, and incomplete. 10. The failure to correct the permit application by supplying FDEP with the final technical memo was therefore knowing, a violation of Sec. 403.161 (1) (c), Florida Statutes and, if wilful, a violation of Sec. 403.11(5), Florida Statutes. d. FKAA's misrepresentations to FDEP and unauthorized alteration of Form2A concerning the "design capacity" entries are a misrepresentation of relevant facts which warrant denial of the renewal permit. 1. FKKA has acknowledged that the design capacity for Cudjoe has not changed since it was originally designed and construction began. Yet, on June 16, 2014, more than five years after the Plant construction began, without filing any new or updated information, and without any change to the Plant design or construction, FKAA filed new Form 2A submissions and changed the design Attachment VI capacity line on the FDEP form to state .94mgdAADF instead of the previous 1.07mgdTMADF.$ 2. The revised Forms 2A for the renewal application were signed by FKAA's Executive Director, Kirk Zuelch, a lawyer, but the cover letter to those changes, signed and sealed on behalf of FKAA by Walt Schwartz, CH2MHill's Engineering Manager for the Plant, contradicts that attempt to characterize the .94mgd AADF as the design capacity and states that the .94mgd AADF is the permitted capacity, and that the 1.07mgd TMADF refers to the design condition in 2028 (design condition is the basis of design capacity, which is for 20 years of service). Permitted capacity is irrelevant under the statute, which is based on design capacity. 3. None of the calculations was redone or recalculated, none of the analysis was changed, and no new information was submitted. The design capacity designations on Form 2A were simply re -labeled. Although FKAA is allowed by FDEP regulations to choose the design capacity it wishes to build for, and the time frames, it can't simply make up a number for design capacity, especiall gy after the Plant is already almost completely built. The design capacity must be based on 8 FDEP had filed a request for Additional information on 5-24-14: "Refer to the Section 3C, item 4, on page 2A-21 of the Form 2A: The 0.94 MGD mentioned in each of the four Forms 62- 528.900(1) that were provided on May 7, 2014, does not agree with the 1.07 MGD. Please clarify the design capacity. If the design capacity of the facility is equal to or greater than 1 million gallons per day, each primary injection well must be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by department rule. [§403.086(10) (e), F.S.]." Attachment VI accurate, realistic data and projections for the design year, and it must be based on the sizing and design of the Plant. 4. Neither can FDEP simply blindly accept FKAA's statement of the design capacity although, in the proposed permit, Statement of Basis, that is precisely what it appears to have done: "As authorized by Rule 62-600.200, F.A.C., the permit applicant established the design capacity to be 0.94 million gallons per day, annual average daily flow. As authorized by Rule 62-600.200, F.A.C., the applicant specified the time frame associated with the design capacity to be annual average daily flow. Since the design capacity is less than 1 million gallons per day, injection wells cased to a minimum depth of 2,000 feet are not required by Sec. 403.086(10)(e), F.S." 5. Under FDEP rules, design capacity is chosen by the applicant, along with the time frame to be used, such as AADF or TMADF. But the choice must be made based on the statutory criteria: "... the average daily flow projected for the design year which serves as the basis for the sizing and design of the wastewater facilities." The Plant was already sized and designed - and construction virtually completed - when FKAA's Executive Director changed the Form 2A in June 2014. Design capacity is not simply a name or label which the applicant can change at will after construction. Especially when its Engineering Project Manager signs and seals that the change refers to permitted capacity, not design capacity. e. For the same reasons as set forth in subsection d, above, FKAA's Attachment VI representations that the design capacity of the Plant is .94mgd AADF Is a misrepresentation of relevant facts which warrants denial of the renewal permit. f. FKAA's misrepresentations that chlorine liquid is not available in Monroe County in order to justify use of chlorine gas, which is more dangerous, is a misrepresentation of relevant facts which warrants denial of the renewal permit. 55. Sec. 62-620.335 (5), F.A.C. provides that the following is cause for denying a permit renewal: (c). "A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit termination." a. The impacts to the flora and fauna in the nearshore waters of Cudjoe Key due to the movement of the partially treated less -saline effluent to surface waters requires a determination that the permitted activity endangers the environment and can only be regulated to acceptable levels by permit termination and a requirement that a deep well be used. b. Shallow well injection will also increase the gradient of the existing contaminated water from the former landfill adjacent to the Plant and will cause it to move into the surface waters of Cudjoe Basin and the wetlands on Cudjoe Key, violating Florida water quality standards and impermissibly impacting endangered and protected species, requiring a determination that the permitted activity endangers the environment and can only be regulated to acceptable levels by permit termination and a requirement that a deep well be used. 56. Sec. 62-620.335 (5), F.A.C. provides that the following is cause for denying a Attachment VI permit renewal: (c). "Failure to submit required information or required fees." a. Sec. 62-4.242(1) (c), F.A.C. requires FKAA to show that "[u]se of other discharge locations, which would reduce adverse impacts on water quality" is not economically and technologically reasonable." The application reflects no such showing and appears to ignore this FDEP requirement. In fact, a deep well -- or "other discharge location"-- is both economically and technologically reasonable. The Florida Legislature has mandated the sewering of the Florida Keys; has adopted a deep well statute expressly addressed to the Florida Keys; Key West and Key Largo both have deep wells, disproving any contention that a deep well is not technologically reasonable; and voters, in a local referendum, approved a tax to be used for Cudjoe Regional, which disproves any contention that the deep well would not be economically reasonable. In fact, both FKAA and the Monroe County Board of County Commissioners have stated that the funds for the deep well are available. Deep well injection will better isolate the partially treated sewage effluent at least 2,000 feet below the surface, so that if it does reach surface waters, it will be farther offshore and in deeper water, allowing for dilution which will minimize the impact on near shore surface waters as compared to shallow well injection. b. FKAA has not submitted required information to show that the wastewater facility will be operated in accordance with Chapter 403, Florida Statutes, and applicable Department rules. C. FKAA has not submitted required information to show that the effluent will not reach surface waters and cause further impairment, violation of water quality Attachment VI standards, and further degradation of water quality. d. FKAA has not submitted required information to show that biosolids management of sludge from other source facilities will not violate Department rules. Secs. 62-620.320(6); 62-640.880(1) and (2)(a); and 62-640.300(4). REQUEST FOR RELIEF 57. Petitioners respectfully request that the Department deny or modify the proposed permit to require FKAA to apply for a deep well permit within 60 days, and to proceed to permitting, construction, and operation with no delay; or transmit the Petition to the Division of Administrative Hearings (DOAH) for a Formal Administrative Hearing held by a DOM Administrative Judge on the disputed issues of fact and law and enter a Recommended Order recommending modification of the permit to require FKAA to apply for a deep well permit within 60 days, and thereafter construct and place in operation the deep well as expeditiously as possible, or recommending denial of the permit for injection of effluent in shallow wells, and that FDEP issue a Final Order denying or modifying the application to address the concerns raised in this Second Amended Petition. SPECIFIC STATUTES & RULES WARRANTING MODIFICATION OR REVERSAL Florida Statutes, Sections: 403.061(27); 403.086(10) (e) (2); 403.086 (10) (h); 403.087; Attachment VI 403.088. Florida Administrative Code Sections: 62-110,106 (5), (7), and (11); 62-4.242 (1), (2) and (3); 62-302.532; 62-302.700; 62-510 (18); 62-520.400; 62-528.630; 62-600,200; 62-600.300; 62-600.400(3) (a); 62-335 (5) (b), (c) and (g); 62-620.320(1); 62-620.550 (1) and (2); 62- 620.528; 62-620.620(1) (g); 62-640.300(4); 62-640.880(1) and (2) (a). Any other statutes and regulations relevant to this action. /s/ Lee Robert Rohe, Esquire Counsel for Petitioners Post Office Box 420259 Summerland Key, FI 33042 (305) 745-2254 (305) 745-4075 — Facsimile Email: I rrlaw@bellsouth.net Florida Bar Number: 271365 Attachment VI /s/ Caron Balkany, Esquire Co -Counsel for Petitioners Post Office Box 420859 Summerland Key, FI 33042 (305)849-1073 (866) 405-6610 - Facsimile Email: Balkany@aol.com Florida Bar Number: 236179 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Transmission on February 23, 2015 to the following individuals: DEP Agency Clerk Lea Crandall at Lea.Crandall@dep.state.fl.us; Craig Varnes, Esq., DEP Counsel Craig.Varnes@dep.state.fl.us• Sidney Bigham, Esq. at Sidney.Bigham@dep.state.fl.us; Fawn Brown at Fawn.Brown@dep.state.fl.us Fred Springer, Esq., Counsel for FKAA at Fspringer@bmolaw.com• Diana Davis, Esq. Counsel for Cudjoe Gardens Property Owners Association, Inc and Sugarloaf Shores Property Owners Association, Inc. at LegacvMatters@outlook.com and Robert Feldman, Esq., Counsel for FKAA at RFeldman@fkaa.com. Attachment VI /s/ Lee Robert Rohe, Esquire LEE ROBERT ROHE, ESQ. Caron Balkany, Esquire PO Box 420859 Summerland Key, FL 33042-0859 (305) 849-1073 Balkany@aol.com March 11, 2015 By Certified Mail Sally jewel, Secretary U.S. Department of the Interior and Daniel M. Ashe, Director United States Fish & Wildlife Service 1849 C Street, N.W. Washington, DC 20240 Lieutenant General Thomas P. Bostick United States Army Corps of Engineers 441 G Street N.W. Washington, DC 20314 Eileen Sobeck, Assistant Administrator for Fisheries National Oceanic and Atmospheric Administration National Marine Fisheries Services 1315 East-West Highway Silver Spring, MD 20910 Heather McTeer Toney, Regional Administrator U.S. Environmental Protection Agency, Region 4 Atlanta Federal Center 61 Forsyth Street, SW Atlanta, GA 30303-3104 Christopher T. Byrd, Esquire The Byrd Law Group, P.A. 3505 Lake Lynda Drive, Suite 200 Orlando, Florida 32817 407-567-2427 christol2her@byrdlawflorida.com C RECEIVED MAR 18 2015 NMOE COUNTY ATTOMEY Re: 60 Day Notice of Intent to Sue for Violations of Section 7 of the U.S. Endangered Species Act and for Violations of the National Environmental Policy Act of 1969 in connection with the Failure of the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, and the National Oceanic and Atmospheric Administration to Review Monroe County and the Florida Keys Aqueduct Authority's Shallow Well Injection of Municipal Sewage Effluent on Cudjoe Key, Florida On behalf of Mike Laudicina, we hereby provide notice, pursuant to section 11(g) of the Endangered Species Act,16 U.S.C. § 1540(g), ("ESA") and the National Environmental Policy Act of 1969,42 U.S.C. §§ 4321-4370h, ("NEPA"), that the U.S. Fish and Wildlife Service ("Service"), the Environmental Protection Agency ("EPA"), the National Oceanic and Atmospheric Administration ("NOAA"), and the Army Corps of Engineers ("Corps") have violated and continue to contravene various provisions of the Acts and their implementing regulations by failing to conduct, initiate or otherwise complete the required consultation and analyses for the shallow well injection of regional municipal sewage effluent on Cudjoe Key, Florida by Monroe County and the Florida Keys Aqueduct Authority. The Florida Keys Aqueduct Authority, as operator of Cudjoe Regional Wastewater Treatment Plant ("the Plant") and Monroe County, as owner, have announced their plans to begin injection of what they state will be just under a million gallons a day of partially treated sewage effluent at the Plant. Other projections indicate that the flow will be higher. They intend to commence injection sometime this month. Monroe County and the Florida Keys Aqueduct Authority plan to inject the effluent into shallow wells drilled 120 feet into porous limestone and cased to 80 feet. The use of a deep well, as opposed to shallow wells, to reduce the impacts of the massive volume of nutrient -laden effluent on the Florida Keys National Marine Sanctuary (the "Sanctuary"), the Service's wetlands adjoining the Plant, and the endangered species and their habitat, has been rejected by Monroe County and the Florida Keys Aqueduct Authority. BACKGROUND A. The Endangered Species Act The ESA has a broad citizen suit provision. Pursuant to the provision, "any person may commence a civil suit to enjoin any person, including... any... governmental instrumentality or agency... who is alleged to be in violation of any Page 2 of 13 provision of [the ESAJ." 16 U.S.C. § 1540(g). Citizens can seek to enjoin both present activities that constitute an ongoing take and future activities that are reasonably likely to result in take. See National Wildlife Federation v. Burlington Northern Railroad, 23 F3d 1508,1511 (90, Cir.1994); Marbled Murrelet v. Babbitt, 83 F.3d 1060,1069 (91h Cir.1996). The ESA's citizen suit provision also provides for the award of costs of litigation, including reasonable attorney and expert witness' fees. 16 U.S.C. § 1540(g) (4). The ESA "represent[s] the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S.153, 180 (1978). Section 9 of the ESA prohibits any "person" from "taking" any member of an endangered or threatened species. 16 U.S.C. § 1538(a).1 Where federal action is involved that is likely to take or otherwise impact listed species, the action agency must engage in consultation with the Service. Id. § 1536. Specifically, the action agency must ensure that the action at issue "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." Id. § 1536(a) (2). An action will cause jeopardy if it "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. An agency must evaluate the effect of a proposed project requiring a federal permit to determine the effect of the project on the species' chances of survival and recovery. This evaluation must use "the best scientific and commercial data available." 16 U.S.C. § 1536(a) (2). At the end of the consultation process, the Service issues a biological opinion, which must analyze the effects of the proposal on listed species, determine whether the proposal is likely to jeopardize any listed species based on both survival and recovery risks, and determine any reasonable and prudent alternatives that might exist (if a jeopardy determination is made), or reasonable and prudent measures to minimize take (if a non jeopardy determination is made). Id. § 1536(b). The Service must also provide an incidental take statement that must specify (1) the amount or extent of such incidental taking on the species; (2) the reasonable and prudent measures necessary to minimize such impacts; and (3) the terms and conditions that must be complied with to 1 The term "take" is defined broadly to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." Id. § 1532(19). FWS has further defined "harass" to include "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, including breeding, feeding, or sheltering." 50 C.F.R. § 17.3. In addition, "harm" is defined to "include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." Id. Page 3 of 13 implement the reasonable and prudent measures,16 U.S.C. § 1536(b) (4); 50 C.F.R. § 402.14(i) (1) (i). The incidental take statement must provide a meaningful trigger for reinitiation of consultation in the event that the level of take authorized by the biological opinion is reached or exceeded. Without an adequate biological opinion in place, any activities likely to result in incidental takes of members of listed species are unlawful. Accordingly, anyone who undertakes such activities, or who authorizes such activities,16 U.S.C. § 1538(g), may be subject to criminal and civil federal enforcement actions, as well as civil actions by citizens for declaratory and injunctive relief. See id. § 1540. B. The National Environmental Policy Act of 1969 The National Environmental Policy Act of 1%9 ("NEPA"), 42 U.S.C. §§ 4321- 4370h, is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1. Its purposes are to "help public officials make decisions that are based on understanding of environmental consequences, and to take actions that protect, restore, and enhance the environment," and to "insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." Id. §§ 1500.1 (b)-(c). To accomplish these purposes, NEPA requires all agencies of the federal government to prepare a "detailed statement" regarding all "major federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(C), including situations where several separate actions may have a cumulatively significant impact on the environment. 40 C.F.R. § 1508.27(b) (7). This statement - known as an Environmental Impact Statement ("EIS") - must describe: (1) the "environmental impact of the proposed action;" (2) any "adverse environmental effects which cannot be avoided should the proposal be implemented;" (3) "alternatives to the proposed action;" (4) "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity;" and (5) "any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 42 U.S.C. § 4332. NEPA further provides that agencies "shall ... study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." Id. § 4332(2) (E). At the time of its decision to take a proposed action, the agency must prepare a concise public "record of decision," which must identify all reasonable alternatives and "[s]tate whether all practicable means to avoid or minimize environmental harm from Page 4 of 13 the alternative selected have been adopted, and if not, why they were not." 40 C.F.R. § 1505.2. C. The Florida Keys National Marine Sanctuary, CudJoe Regional Wastewater Treatment Plant, and the Florida Keys Water Quality Improvements Program The Florida Keys Water Quality Improvements Program, with the Corps as the lead agency, is intended to implement wastewater and stormwater improvements that will alleviate the water quality degradation that has resulted from the discharge of inadequate and untreated wastewater and stormwater into nearshore waters of the Sanctuary. The Sanctuary is part of a complex ecosystem encompassing approximately 2,800 square nautical miles of nearshore and marine waters, including the Everglades, Florida Bay, and adjacent areas. The Florida Keys (the "Keys") is a chain of more than 800 islands extending approximately 220 miles southwest from the southern tip of the Florida peninsula and through the Sanctuary. Cudjoe Regional Wastewater Treatment Plant ("Plant") is the final regional wastewater treatment plant to be constructed and is the culmination of a several decades project to improve the water quality of the Florida Keys pursuant to Congressional mandate. The Florida Keys Water Quality Improvements Plan is based on the concept that removing shallow package plant wells and septic tanks and installing centralized sewers will improve water quality. Thus, the other two large wastewater treatment plants in The Florida Keys - in Key West and Key Largo - utilize deep wells for injection of the partially treated sewage effluent. The intention at Cudjoe, however, is to collect the sewage from over 7,000 households, businesses, and commercial establishments and concentrate it in four shallow wells drilled to an open hole at 80 feet into porous limestone along the coast of Cudjoe Key, surrounded by Outstanding Florida Waters in the Sanctuary as well as the Florida Keys Wildlife Refuges Complex, and Service wetlands. Cudjoe Key is part of what is known as the Lower Keys, located in unincorporated Monroe County. Cudjoe Key, site of the Plant, is located between mile markers (MM) 20.5 and MM 23, directly west of Summerland Key, and covers approximately 3580 acres. The majority of development is located on the south side of U. S. Highway 1; the Plant is located to the north of U. S. Highway 1. Cudjoe Key is bordered on the north by the shallow waters of the back county and on the south by the Atlantic Ocean. On the east and west are Kemp and Bowe Channels. Cudjoe Key lies within the fragmented boundaries of the Florida Keys Page 5 of 13 Wildlife Refuges Complex. The Plant and its four shallow sewage injection wells are located adjacent to a solid waste transfer station and a former landfill located approximately one mile north of U.S. Highway 1 and a half mile west of Blimp Road. The Plant is located adjacent to the west side of and uses two cells of a Monroe County decommissioned landfill. The four shallow injection wells are located about 75 feet from mangroves fringing a shallow marine lagoon, and each is spaced about 75 feet from each other. The well sites are also about 400 feet from wetlands owned and managed by the Service. Near the site of the Plant and shallow sewage injection wells are marine and estuarine wetlands, classified as E2FO3P, E2USM, and some E2SS3N, E2SS3P, and E2USN, according to the Service's wildlife refuge. The shallow waters of the back county are on the north side of the mangrove - fringed shallow marine lagoon adjacent to the shallow sewage injections wells. The controlling depth in the back country is 3-4 feet for quite some distance. To the east and west of the well sites are Bowe and Kemp Channels, transferring the diurnal tidal flow to and from the back county and the Atlantic Ocean, including Looe Key National Marine Sanctuary, approximately 10 miles to the south. D. The Species At Issue Coral reefs and other benthic habitats are identified as Essential Fish Habitat and must be considered as part of any federal action. Three endangered terrestrial species and one endangered marine species have been observed by Service personnel on Cudjoe Key near the Plant site. The endangered Elkhorn and Staghorn corals are also found on Looe Key, just 10 miles to the south, and are known to grow in near shore waters. The Lower Keys Marsh Rabbit (Sylvilagus palustris It fMeri) is a critically impaired and endangered species that maintains its primary habitat in the tidal marshes and adjacent upland habitat on Cudjoe Key, and has been observed there by Service personnel. The Silver Rice Rat (Orymmys argentatus, Orymmys palustris natator) is an endangered species that maintains its habitat in the areas containing contiguous mangrove swamps, salt marsh flats, and buttonwood transition vegetation (See, Goodyear 1987) as well as freshwater occurrences located on Cudjoe Key which is designated critical habitat for the species. Service personnel have observed the Silver Rice Rat on Cudjoe Key. Page 6 of 13 The Key Deer (Odocoileus virginianus clavium) is an endangered species that utilizes Cudjoe Key's fresh water, pinelands, hardwood hammocks and mangroves for its habitat and grassy areas for feeding. It may move to adjacent islands during wet weather, returning in dry periods to islands having fresh water. Key Deer have been observed by Service personnel on Cudjoe Key. The Small Tooth Sawfish (Pristis pectinate) is an endangered species that makes it home in shallow coastal and estuarine waters such as those off Cudjoe Key. Service personnel have observed a Small Tooth Sawfish in the nearshore waters off Cudjoe Key. Elkhorn Coral (Acropora palmate) and Staghorn Coral (Acropora cervicornis) are threatened species with designated critical habitat located just south of Cudjoe Key. Elkhorn Coral and Staghorn Coral are extremely susceptible to the sedimentation and eutrophication threatened by the Plant and its shallow sewage injection wells. "The limited amount of undeveloped natural habitat in the Keys makes these areas and associated species vulnerable to development. Because there are so few remaining developable lands, any project that results in the loss of natural areas is likely to impact protected species." U.S. Fish & Wildlife Service. E. The Plaintiff Plaintiff, Mike Laudicina, whose mailing address is P.O. Box 430411, Big Pine Key, FL 33043, is a resident of Big Pine Key, Florida within the area served and affected by the proposed agency action. Mike Laudicina's substantial interests in environmental integrity will be directly, adversely and immediately affected by the actions about to be undertaken by the Florida Keys Aqueduct Authority. The shallow injection wells will allow partially treated sewage effluent and contaminated groundwater to rise to the surface waters, where the quantity and salinity of the effluent, as well as the nutrients present in the effluent, will cause or contribute to algal mats; decreased visibility in the waters; shadowing and decreased oxygen, all of which will adversely impact the benthic organisms that support the fisheries used by Plaintiff; and will cause other adverse effects to the water resources and marine life resources of the State of Florida regularly used by Plaintiff. He is a commercial fisherman who regularly harvests crab and lobster from the near shore waters around the Plant. He also snorkels, crabs, and fishes the area for recreation. He has lived in Monroe County for over 40 years, and has served on the Florida Keys National Marine Sanctuary Advisory Council for nine years and the Gulf of Mexico Spiny Lobster Advisory Council for many years, and has frequently worked for, and collaborated with, numerous marine scientists conducting research in the Lower Florida Keys. The proposed action will devalue the fish, spiny lobster and crabs Page 7 of 13 which he regularly consumes, provides to family and friends, and sells and will make them undesirable. The proposed agency action will also make the waters utilized by Plaintiff visually and aesthetically unpleasant, and interfere with his use and enjoyment of the waters. DISCUSSION A. Imminent Threat of Harm It has come to our attention that Florida Keys Aqueduct Authority, with the agreement of Monroe County, is conducting dye -tracer studies and is intent on moving into the operation phase of the shallow sewage injection wells as soon as possible. Already, several million gallons of chlorine and chloramine-contaminated freshwater, with no effort at dechlorination, have been injected into the shallow wells without adequate consultation with the Service and without appropriate environmental review. Additionally, Florida Keys Aqueduct Authority and Monroe County have announced their intention to begin injection of partially treated sewage effluent this month. Again, there has been no biological consultation and no proper environmental review. The Corps was the "lead agency' for the development of the Florida Keys Environmental Improvements Program, which included a Final PEIS for the entire Florida Keys. Environmental Assessments or Environmental Impact Statements were contemplated to be conducted for each project within the County plan, including Cudjoe Regional. However, although Monroe County and Florida Keys Aqueduct Authority have been circulating a document entitled "Draft Environmental Assessment November 2010" with the Corps logo and name on it, in fact, the Corps did not author this document and did not participate in any environmental review of the Cudjoe Regional Wastewater Plant. Despite the fact that federal funds were used for the County -wide PEIS conducted by the Corps, and despite the fact that Cudjoe Regional, through sponsorship by Monroe County, is the recipient of federal funds through the State Revolving Loan Fund, there has been no environmental review of the Project as mandated by the ESA and NEPA, and therefore EPA, the Corps, and NOAA have failed to comply with their obligations under the ESA and NEPA to ensure that such environmental review occurs. Further, the Service, while normally waiting for a lead agency to initiate Section 7 consultation under the ESA, has been advised by the undersigned of the lack of Section 7 consultation for Cudjoe's shallow sewage wells. The Service also has an obligation to ensure that compliance with the federally required environmental review processes occurs prior to actions by FKAA and Monroe County which may endanger protected Page 8 of 13 species and their habitat. Mangrove stands on Cudjoe Key are valuable communities that serve a variety of natural functions including acting as storm buffers, decreasing erosion and stabilizing land, enhancing water quality, recycling nutrients, providing habitat for a large variety of animals, and acting as nursery grounds for many species, including many commercially valuable fish species. (See, Snedecker and Lugo 1973, USFWS 1999, NOAA 2001b). The ecosystem of the mangroves and the viability of the plant species which grow in their understory is affected by changes in salinity. This is important habitat for the mentioned endangered species. Marine and benthic habitats in the nearshore waters of Cudjoe Key include seagrass beds, tidal/sand flats, sand/mud bottom, and hardbottom communities. These communities are sensitive, complex ecosystems influenced by many different sources. Changes in water temperature, pH, and clarity levels all affect the health and survival of marine and benthic communities. South of the shallow wells and adjacent to the Plant is a large area of wetlands belonging to and managed by the Service. These wetlands have mangroves, open areas and depressions which collect rainwater and appear to receive groundwater contribution as well, according to observations of intermittent yellow, oily water in the depressed areas. They appear to extend to the coastline on the west of the Plant. The wetlands, the shallow marine lagoon, and the nearshore waters north of the well sites are within the radius of a large increase in groundwater level which is calculated to result from the proposed injection of approximately 30 million gallons a month of partially treated effluent at the Plant into the shallow sewage injection wells. This increased gradient, as mapped and modeled, is projected to be capable of pushing the chemically -contaminated groundwater (from the landfill), along with the nutrient - rich, partially treated sewage effluent, into the wetlands adjacent to the Plant. The increased groundwater gradient is also projected to force the landfill -contaminated groundwater and the partially treated sewage effluent into the near shore waters as well. Flooding at the site and the wetlands is to be expected. The endangered species found on Cudjoe Key and the habitat they use to attempt recovery and survival are all impacted by additions of landfill -contaminated groundwater to their drinking water and plant communities, along with nutrient -laden sewage effluent, both of which will alter the chemistry of the water and promote algal growth. There are existing groundwater quality changes at Cudjoe Key and other developed areas of the Keys. Aside from becoming less saline because of the freshwater influence of wastewater inputs, groundwater quality has become degraded Page 9 of 13 because wastewater effluent is typically oxygen -depleted, enriched in the nutrients like nitrogen and phosphorus, and contains fecal coliform bacteria. Because of its open nature, the effects of degraded ground water can be seen in nearshore and offshore marine waters and their ecosystems. Degraded groundwater can flow into near shore waters of the Sanctuary within hours or days. Rainfall is an important factor affecting the movement of substances through groundwater, especially in the Keys. During a rainfall event, nutrients and pathogens are transported from groundwater to local canals and adjacent nearshore waters through the porous characteristic of the underlying aquifer. In addition, the movement of nutrient enriched ground water from inland areas to adjacent near shore waters increases at low tides (Kruczynski 1999, Lapointe and Matzie 1996). The cumulative effect of these actions is an increase in ground water transport into near shore environments. The shallow marine lagoon and the near shore waters adjacent to the well sites are already degraded, with large algal mats covering turtle grass beds and other marine life. When dead algae decompose, oxygen is depleted and can create hazardous or toxic conditions for organisms, resulting in adverse impacts such as fish kills and species shifts. Large algal blooms would also cause hypoxic (low oxygen) or anoxic (oxygen depleted) conditions in shallow, poorly flushed locations such as the lagoon off the Cudjoe Plant well sites. In addition, elevated nutrient loads can induce changes in species composition of a community and can stress seagrasses by promoting epiphyte growth. Nearshore habitats, particularly seagrasses, are adversely affected by water quality degradation. Nutrient enrichment and contaminant introduction lead to algal blooms, decreased water clarity and light penetration and subsequent loss of seagrasses. Increasing dysfunction of the impacted areas and the impacts themselves can extend farther from shore (Kruczynski and McManus 2002), affecting offshore water quality and the health of coral reef ecosystems. Historic extinctions of entire trophic levels in coastal ecosystems make them more vulnerable to other natural and human - induced disturbances such as nutrient loading and hypoxia, disease, storms, and climate change (Jackson et al. 2001). Excessive nutrient loading in nearshore waters of the Sanctuary can only exacerbate historic problems related to coral reef health. Water quality degradation due to the release of contaminants and pathogens from wastewater, landfill contaminated groundwater, and stormwater can result in bioaccumulation and biomagnification of the pollutants as the pollutants "build-up" as individual organisms are consumed by larger and larger organisms and transferred up the food chain. Page 10 of 13 Hardbottom communities and coral reefs thrive in oligotrophic environments (Kruczynski and McManus 2002). Nutrient -enrichment in these environments can stimulate nutrient limited phytoplankton, leading to algal blooms in the water column. Both algal blooms and Total Suspended Solids can reduce water clarity by decreasing light penetration and subsequently reducing photosynthesis and production in seagrass beds. Besides decreasing water clarity, eutrophic conditions can stress corals by promoting macroalgal growth (Lapointe et al.1994) Changes in salinity of the wetlands and the shallow marine lagoon due to the massive amounts of less -saline wastewater may have adverse effects on the flora and fauna in both areas. Without the complete and adequate protective measures required by Federal review processes prior to testing and operation of the shallow sewage injection wells, there exists an imminent threat of harm to listed species and the environment on and around Cudjoe Key and in the Sanctuary. Therefore, we respectfully request the immediate issuance of a stop work or cease and desist order until all required Federal reviews and consultations are complete. B. Violation of the Endangered Species Act To date, the record shows absolutely no signs of consultation with the Service under Section 7 of the ESA. C. Violation of the National Environmental Policy Act Similarly, the record is also completely devoid of a Record of Decision, let alone an Environmental Impact Statement on the imminent use and operation of the shallow sewage injection wells and their impact on the environment of the Florida Keys, the National Marine Sanctuary, and the groundwater, wetlands, and nearshore waters of Cudjoe Key. In fact, Monroe County and the Florida Keys Aqueduct Authority have been circulating a document entitled "Draft Environmental Assessment" dated November, 2010. This document bears the name and logo of the Corps, but the Corps has denied authorship of the document. Thus, not only is there no compliance with NEPA and the ESA, but circulation of this document has made it erroneously appear as though the Corps has prepared a federal compliance document, when it has not. Page 11 of 13 CONCLUSION As described above, clear and imminent violations of the ESA and NEPA have occurred and will continue to occur with regards to Monroe County and the Florida Keys Aqueduct Authority's testing and operation of the four shallow sewage injection wells located at the Cudjoe Regional Wastewater Treatment Plant. Therefore, we urge the Service, the EPA, NOAA, and the Corps to immediately instruct Florida Keys Aqueduct Authority and Monroe County that they may not proceed with such testing or operation and to promptly conduct legally permissible analyses of the effects of the action on the listed species and the environment Please do not hesitate to contact us if you wish to discuss this matter or have any questions concerning this letter. If we do not hear from you, we will assume that no action will be taken and will consider all available avenues, including litigation, to conserve the highly imperiled listed species on Cudjoe Key, the environment of the Florida Keys, and the Florida Keys National Marine Sanctuary in accordance with the requirements of the ESA and NEPA. Sincerely, /s/ Caron Balkany Christopher T. Byrd cc: Florida Keys Aqueduct Authority 1100 Kennedy Drive Key West, FL 33040 Robert Feldman, General Counsel Florida Keys Aqueduct Authority 1100 Kennedy Drive Key West, FL 33040 Roman Gastesi, Jr., Monroe County Administrator ✓ 1100 Simonton Street, Suite 205 Key West, Florida 33040 Page 12 of 13 Bob Shillinger, Monroe County Attorney 1111 12th Street, Suite 408 Key West, Florida 33040 Page 13 of 13 Caron Balkany, Esquire PO Box 420859 Summerland Key, FL 33042-0859 (305) 849-1073 Balkany@aol.com June 18, 2015 By Electronic Mail - Receipt Confirmation Requested Regina "Gina" McCarthy, Administrator United Sates Environmental Protection Agency McCarthy.gina@epa.gov Christopher T. Byrd, Esquire THE BYRD LAW GROUP, P.A. 3505 Lake Lynda Drive, Suite 200 Orlando, Florida 32817 407-567-2427 christopher@byrdlawflorida.com Jonathan P. Steverson, Secretary State of Florida Department of Environmental Protection lon.Steverson@dep.state.fl.us Kirk C. Zuelch, Executive Director Florida Keys Aqueduct Authority kzuelch@fkaa.com Roman Gastesi, Jr., Monroe County Administrator gastesi-roman@monroecoun!y-fl.gov Loretta E. Lynch, Esquire, Attorney General of the United States U.S. Department of Justice Loretta.lynch@usdoj. gov Pam Bondi, Attorney General of the State of Florida Office of Attorney General pam.bondi@myfloridalegal.com Re: 60 Day Notice of Intent to Sue for Violations of Section 301(a) of the U.S. Clean Water Act in connection with the Florida Department of Environmental Protection and the U.S. Environmental Protection Agency's Failure to Require Monroe County and the Florida Keys Aqueduct Authority to Obtain a National Pollution Discharge Elimination Permit for Shallow Well Injection of Municipal Sewage Effluent on Cudjoe Key, Florida On behalf of Mike Laudicina, we hereby provide notice, pursuant to the Clean Water Act, 33 U.S.C. § 1251 et seq., ("CWA"), Citizen Suit Provision, 33 U.S.C. § 1365, that the Florida Department of Environmental Protection ("FDEP") and the Environmental Protection Agency ("EPA") have violated and continue to contravene various provisions of the CWA and their implementing regulations by failing to require Monroe County and the Florida Keys Aqueduct Authority to obtain the proper National Pollutant Discharge Elimination System ("NPDES") permits prior to the construction, testing and operation of the four shallow wells which will be injecting regional municipal sewage effluent on Cudjoe Key, Florida. The Florida Keys Aqueduct Authority ("FKAA"), as operator of Cudjoe Regional Wastewater Treatment Plant ("the Plant") and Monroe County, as owner, have announced their plans to begin injection of partially treated sewage effluentinto shallow wells drilled 120 feet into porous limestone and cased to 80 feet. The wells are located immediately adjacent to an unlined decommissioned landfill and designated critical habitat for endangered species. Injection has been announced to commence as soon as possible. FKAA recently contracted for some testing which resulted in"... convincing evidences that injected freshwater at the current injection depth of 80' to 120', and atthe experimental injection rate of 420 gal/min, readily migrates upward and then laterally to the unconfined shallow aquifer and eventually to surface waters. These results are similar to those found by other researchers elsewhere in the Florida Keys." Final Report, Design and implementation of dye -tracer injection test, Cudjoe Key, Florida Keys, Briceno, Garcia, Gardinali, Boswell, Serna, Shinn, April 11, 2015, attached hereto and incorporated herein as ExhibitA. Professional mappings, analyses and projections of the hydrogeology at Cudjoe Key predicted these observed results. They also project that even at half the flow rate of effluent, there will still be flooding to the nearshore waters adjacent to the well site as well as discharge to the surface waters, forcing upward migration of groundwater from the adjacent landfill. Please see the GeoHydros, LLC, study dated March 27, 2015, attached hereto and incorporated herein as Exhibit B. LEGAL BACKGROUND A. The Clean Water Act The Federal NPDES program was established by Congress in 1972 by Section 402 of the Federal Water Pollution Control Act, later known as the Clean Water Act, 33 U.S.C. § 1251-1387. The CWA authorizes the Administrator of the EPA to issue a permit for the discharge of a pollutant if the discharge complies with technology -based effluent Page 2 of 8 guidelines included in Section 1311(b)(2)(A). The CWA also requires a demonstration of compliance with applicable water quality standards, which are established by the states and approved by the EPA. Upon delegation of the NPDES program to Florida, the Florida Legislature consolidated processing of state and federal discharge permits into one "wastewater" permit by enacting Section 403.0885, Florida Statutes ("Fla. Stat."). It provides that the permit may authorize discharges to surface or ground water. The Legislature also merged the previously separate state construction permit for water pollution sources into the same process. See § 403.087(5), Fla. Stat. FDEP's authority to assume delegation of the NPDES program is set forth in Section 403.0885(3), Florida Statutes (2013), and is undertaken pursuant to a Memorandum of Agreement (MOA) with the EPA Region 4. The MOA recognizes that the FDEP does not exercise jurisdiction over federally recognized Indian lands in Florida, and Florida did not seek authorization of an NPDES program in those areas. Likewise, the FDEP did not seek authorization for a sewage sludge management program as part of the NPDES program. The MOA specifies that the FDEP will regulate industrial, commercial, mining and silvicultural discharges except as discussed above. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of any pollutants except as authorized by, and in compliance with, certain enumerated sections of the CWA, including Section 402 of the CWA, 33 U.S.C. § 1342. Section 502(12) of the CWA, 33 U.S.C. § 1362(12), defines the term "discharge of pollutants" as "any addition of any pollutant to navigable waters from any point source...." Section 502(6) of the CWA, 33 U.S.C. § 1362(6), defines the term "pollutant" to include sewage, sewage sludge, biological materials, and industrial and municipal waste discharged into water. Section. 502(14) of the CWA, 33 U.S.C. § 1362(14), defines the term "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit.. from which pollutants are or may be discharged." Section 502(7) of the CWA, 33 U.S.C. § 1362(7), defines the term "navigable waters" as the waters of the United States, including territorial seas. (Emphasis added). Furthermore, the Florida Legislature specifically prohibited "[t]he discharge of domestic wastewater into surface waters" in Monroe County. See § 403.087(10), Fla. Stat. Page 3 of 8 B. The Plaintiff Plaintiff, Mike Laudicina, whose mailing address is P.O. Box 430411, Big Pine Key, FL 33043, is a resident of Big Pine Key, Florida within the area served and affected by the proposed agency action. Mike Laudicina's substantial interests in environmental integrity will be directly, adversely and immediately affected by the actions about to be undertaken by the Florida Keys Aqueduct Authority. The shallow injection wells will allow partially treated sewage effluent and contaminated groundwater to rise to the surface waters, where the quantity and salinity of the effluent, as well as the nutrients present in the effluent, will cause or contribute to algal mats; decreased visibility in the waters; shadowing and decreased oxygen, all of which will adversely impact the benthic organisms that support the fisheries used by Plaintiff; and will cause other adverse effects to the water resources and marine life resources of the State of Florida regularly used by Plaintiff. Mike Laudicina is a commercial fisherman who regularly harvests crab, fish and lobster from the near shore waters around the Plant. He also snorkels, crabs, and fishes the area for recreation. He has lived in Monroe County for over 40 years, and has served on the Florida Keys National Marine Sanctuary Advisory Council for nine years and the Gulf of Mexico Spiny Lobster Advisory Council for many years, and has frequently worked for, and collaborated with, numerous marine scientists conducting research in the Lower Florida Keys. Operation of the Plant will devalue the fish, spiny lobster and crabs which he regularly consumes, provides to family and friends, and sells and will make them undesirable. The Plant will also make the waters utilized by Plaintiff visually and aesthetically unpleasant, and interfere with his use and enjoyment of the waters. DISCUSSION In April, 2015, FKAA, with the knowledge of FDEP, injected several million gallons of chlorine and chloramine-contaminated freshwater, with no effort at dechlorination, into the shallow wells without a NPDES program permit. According to the test results, the injectate flooded the surface waters at the well site and also discharged to the nearshore waters and the adjacent wetlands. The injectate also caused contaminated groundwater which FKAA's testing experts believe is connected to the landfill to migrate to surface waters and adjacent wetlands. In the next few weeks, FKAA and FDEP, who are dis-satisfied with the conclusions of their contracted scientist that the discharge reached surface waters, along with contamination from the landfill, plan yet another round of well testing. Despite actual knowledge that the wells have a hydrological connection to surface waters, FDEP has still not required FKAA to obtain an NPDES permit, or a permit from U.S. Fishand Page 4 of 8 Wildlife Service, whose wetlands and wildlife sanctuaries are at risk from the test. Thereafter, FKAA has announced, it will begin operation of the Plant and discharge partially treated sewage effluent to the shallow wells on Cudjoe Key. The discharge of freshwater during testing or the discharge of nutrient -laden partially treated Advanced Wastewater Treated ("AWT") water into. any of the four shallow wells to groundwater that is hydrologically connected to Cudjoe Bay and Back Bay, waters of the Gulf of Mexico and the Florida Keys Outstanding Florida Water, and to other adjacent surface waters and wetlands clearly requires NPDES program permits. FDEP refuses to recognize these facts and has failed to review the Plant under its CWA delegation. Marine and benthic habitats in the nearshore waters of Cudjoe Key include seagrass beds, tidal/sand flats, sand/mud bottom, and hardbottom communities. These communities are sensitive, complex ecosystems influenced by many different sources. Changes in water temperature, pH, and clarity levels all affect the health and survival of marine and benthic communities. South of the shallow wells and adjacent to the Plant is a large area of wetlands belonging to and managed by the U.S. Fish & Wildlife Service. These wetlands have mangroves, open areas and depressions which collect rainwater and appear to receive groundwater contribution as well, according to observations of intermittent yellow, oily water in the depressed areas. They appear to extend to the coastline on the west of the Plant. The wetlands, the shallow marine lagoon, and the nearshore waters north of the well sites are within the radius of a large increase in groundwater level which is calculated to result from the proposed injection of partially treated effluent at the Plant into the shallow sewage injection wells. This increased gradient, as mapped and modeled, is projected to push the chemically -contaminated groundwater (from the landfill), along with the nutrient -rich, partially treated sewage effluent, into the wetlands adjacent to the Plant. The increased groundwater gradient is also projected to force the landfill -contaminated groundwater and the partially treated sewage effluent into the near shore waters as well. Flooding at the site and the wetlands is to be expected. These calculations were field observed in April, 2015, by FKAA's contractor. See, Exhibit A. Page 5 of 8 Rainfall is an important factor affecting the movement of substances through groundwater, especially in the Keys. During a rainfall event, nutrients and pathogens are transported from groundwater to local canals and adjacent nearshore waters through the porous characteristic of the underlying aquifer. In addition, the movement of nutrient enriched ground water from inland areas to adjacent near shore waters increases at low tides (Kruczynski 1999, Lapointe and Matzie 1996). The cumulative effect of these actions is an increase in ground water transport into near shore environments. The shallow marine lagoon and the near shore waters adjacent to the well sites are already degraded, with large algal mats covering turtle grass beds and other marine life. When dead algae decompose, oxygen is depleted and can create hazardous or toxic conditions for organisms, resulting in adverse impacts such as fish kills and species shifts. Large algal blooms would also cause hypoxic (low oxygen) or anoxic (oxygen depleted) conditions in shallow, poorly flushed locations such as the lagoon off the Cudjoe Plant well sites. In addition, elevated nutrient loads can induce changes in species composition of a community and can stress seagrasses by promoting epiphyte growth. Nearshore habitats, particularly seagrasses, are adversely affected by water quality degradation. Nutrient enrichment and contaminant introduction lead to algal blooms, decreased water clarity and light penetration and subsequent loss of seagrasses. Increasing dysfunction of the impacted areas and the impacts themselves can extend farther from shore (Kruczynski and McManus 2002), affecting offshore water quality and the health of coral reef ecosystems. Historic extinctions of entire trophic levels in coastal ecosystems make them more vulnerable to other natural and human- induced disturbances such as nutrient loading and hypoxia, disease, storms, and climate change (Jackson et al. 2001). Excessive nutrient loading in nearshore waters of the Sanctuary can only exacerbate historic problems related to coral reef health. Water quality degradation due to the release of contaminants and pathogens from wastewater, landfill contaminated groundwater, and stormwater can result in bioaccumulation and biomagnification of the pollutants as the pollutants "build-up" as individual organisms are consumed by larger and larger organisms and transferred up the food chain. Hardbottom communities and coral reefs thrive in oligotrophic environments (Kruczynski and McManus 2002). Nutrient -enrichment in these environments can Page 6 of 8 stimulate nutrient limited phytoplankton, leading to algal blooms in the water column. Both algal blooms and Total Suspended Solids can reduce water clarity by decreasing light penetration and subsequently reducing photosynthesis and production in seagrass beds. Besides decreasing water clarity, eutrophic conditions can stress corals by promoting macroalgal growth (Lapointe et al.1994) Changes in salinity of the wetlands and the shallow marine lagoon due to the massive amounts of less -saline wastewater may have adverse effects on the flora and fauna in both areas. Without the protective measures required by Federal and Florida law prior to testing and operation of the shallow sewage injectionwells, there exists an imminent threat of harm to the water and natural resources on and around Cudjoe Key and in the Sanctuary. Therefore, we respectfully request the immediate issuance of a stop work or cease and desist order until all required CWA permits are applied for and issued. CONCLUSION As described above, clear and imminent violations of the CWA have occurred and will continue to occur with regards to Monroe County and the Florida Keys Aqueduct Authority's construction, testing and operation of the four shallow sewage injection wells located at the Cudjoe Regional Wastewater Treatment Plant. Therefore, we urge the FDEP and the EPA to immediately instruct the Florida Keys Aqueduct Authority and Monroe County that they may not proceed with such further construction, testing or operation and to promptly submit application for the appropriate NPDES permits pursuant to EPA Region 4's CWA MOA with the State of Florida. Please do not hesitate to contact us if you wish to discuss this matter or have any questions concerning this letter. If we do not hear from you, we will assume that no action will be taken and will consider all available avenues, including litigation, to conserve the highly valued water resources of Cudjoe Key, the environment of the Florida Keys, and the Florida Keys National Marine Sanctuary in accordance with the requirements of the CWA and Florida law. Sincerely, /l Christopher T. Ryrd Christopher T. Byrd, Esquire Caron Balkany, Esquire Page 7 of 8 cc: Robert Feldman, General Counsel Florida Keys Aqueduct Authority rfeldman@fkaa.com Lea Crandall, Agency Clerk State of Florida Department of Environmental Protection Lea.Crandall@dep.state.fl.us Heather McTeer Toney, Regional Administrator United States Environmental Protection Agency, Region 4 McTeertoney.heather@epa.gov Bob Shillinger, Monroe County Attorney Shillinger-Bob@monroecoun!y-fl.gov Page 8 of 8 Caron Balkany, Esquire Christopher T. Byrd, Esquire PO Box 420859 THE BYRD Law GROUP, P.A. Summerland Key, FL 33042-0859 3505 Lake Lynda Drive, Suite 200 (305) 849-1073 Orlando, Florida 32817 Balkany@aol.com 407-567-2427 christopher@byrdlawflorida.com June 19, 2015 By Electronic Mail - Receipt Confirmation Requested Florida Department of Environmental Protection Sidney Bigham, III, sidney.bigham@dep.state.fl.us; fawn.brown@dep.state.fl.us Sarah Doar, sarah.doar@dep.state.fl.us; Kimberly.Cupp@dep.state.fl.us Benjamin Melnick, benjamin.melnick@dep.state.fl.us; Kimberly.Cupp@dep.state.fl.us Florida Keys Aqueduct Authority Robert Feldman, rfeldman@fkaa.com Frederick Springer, fpringer@bmolaw.com; docket@bmolaw.com Elizabeth Neiberger, eeiberger@bmolaw.com; ablack@bmolaw.com Monroe County Robert Shillinger, Jr., shillinger-bob@monroecounty-fl.gov Cynthia Hall, hall-cynthia@monroecounty-fl.gov Derek Howard, howard-derek@monroecounty-fl.gov Re: DOAH Case No. 15-1233; Laudicina, DeMaria, Cudjoe Gardens POA, Inc., and Sugarloaf Shores POA, Inc., v. FKAA and FDEP Notice of Spoliation of Evidence and Request to Cease and Desist Counsel: We write to advise you of our concerns about spoliation of the baseline water quality evidence in the nearshore waters, wetlands and groundwater of Cudjoe Key. FKAA and Monroe County's April 2015 dye tracer testing has already demonstrated that the wells lack mechanical integrity and that the injection of fluids into the shallow well system will result in discharge to the land surface, surface waters and wetlands of Cudjoe Key and will mobilize groundwater with landfill contaminants which also migrate to the water resources. These test have proven that the wells should not be used for backup, interim or any other use. Further, these tests have already, to some extent, created spoliation of critical physical evidence that is in the control of FKAA and Monroe County. Therefore, we are objecting to any further use of the well system at Cudjoe, either for well testing or for injection until the litigation in this matter is final. We understand that you are planning to go forward with a well capacity test, preceded by baseline monitoring. Obviously, the well capacity testing has the potential to alter the surface water characteristics, including salinity, of the adjacent nearshore waters and wetlands, as well as the characteristics and location of the groundwater contaminants. Therefore, in order to minimize additional spoliation of evidence, obtaining a proper baseline and characterization of the surface waters, groundwater and wetlands, using site -specific appropriate sampling methodology, is imperative prior to commencing any testing. Also, a complete and robust characterization of the fresh, brackish and saline groundwater under the landfill based on site -specific appropriate sampling methodology is necessary before moving forward. It is also critical to monitor continuously throughout the injection process, and to stop injection immediately upon any indication of mobilization of groundwater or landfill contaminants, movement of the hydraulic head in the direction of the landfill, or migration of the injectate or any contaminants to the water resources. We again urge you not to undertake this test, which is unnecessary since the well system has already been demonstrated to allow migration to the nearshore waters and wetlands onsite. The spoliation previously committed will be repeated. If you do intend to go forward, we urge you to make the baseline assessment robust and comprehensive so as to minimize the negative impact on the evidence needed for our pending litigation about the shallow wells. Without your cooperation, we are prepared to file an emergency motion with the Administrative Law Judge to determine whether spoliation of critical evidence has been or will be committed. Please respond within three (3) days of the date of this letter if you are amenable to preventing such spoliation of evidence. Sincerely, Is/Christopher T. Byrd Christopher T. Byrd, Esquire Caron Balkany, Esquire Page 2 of 2 EXHIBIT B Notice of Draft Permit No. 336267-001-UC/5W dated August 12, 2015 FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION BOB 41ARTINP7 CENTER 2600 SLAM STONE: ROAD FALLAIIASSF.E. FLORIDA 32399-2400 SENT VIA ELECTRONIC MAIL. In the Matter of an Application for Permit by: Thomas Walker, P.E., Deputy Executive Director Florida Keys Aqueduct Authority 1100 Kennedy Drive Key West, Florida 33041 twalker(iffkaa.com Rick Scott Coyernor Carlos Loped-Cantera Lt, Governor Jonathan P. Steverson Interim Secretary August 12, 2015 Monroe County UIC 336267-001-UC15 W WACS ID 102467 Class V, Group 3, Injection Well System, DIW-1 Construction and Testing Permit NOTICE OF DRAFT PERMIT The Department of Environmental Protection hereby gives notice that a Draft Permit has been developed for the proposed project as detailed in the application specified above, for the reasons stated below. The applicant, Florida Keys Aqueduct Authority, Thomas Walker, P.E., Deputy Executive Director, 1100 Kennedy Drive, Key West, Florida 33041 applied on July 1, 2015 to the Department of Environmental Protection for a permit to construct and operationally test a Class V injection well system. The Department has permitting jurisdiction under chapter 403 of the Florida Statutes and the rules adopted thereunder. The project is not exempt from permitting procedures. The Department has determined that a construction and testing permit is required for the proposed work. Pursuant to section 403.815 of the Florida Statutes, and Rule 62-528.315 (6)(b) of the Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Draft Permit. The Notice must be published one time only within 30 days in a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a newspaper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031 of the Florida Statutes, in the county where the activity is to take place. The applicant shall provide proof of publication to the Tallahassee Office of the Department within seven (7) days of publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UG5W Florida Keys Aqueduct Authority WACS 11): 102467 Cudjoe Regional AWRF Date: August 12, 2015 Any interested person may submit written comments on the draft permit within 30 days of the public notice. Written comments may be submitted to the Department of Environmental Protection, Aquifer Protection Program, 2600 Blair Stone Road, MS 3530, Tallahassee, Florida 32399-2400. All comments received within the 30-day period and during the public meeting will be considered by the Department in formulating a final decision concerning this project. If a public meeting is arranged it must be held in the area of the well no less than 30 days after publication of this Notice for the purpose of receiving verbal and written comment concerning this project. If a public meeting is not arranged prior to publication, the Notice must provide an opportunity for a public meeting. If a public meeting is later scheduled, there will be another 30-day notice period for that meeting. Please contact Douglas Thornton, Engineering Specialist at 850.245,8666, for additional information. Executed in Leon County, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION 2 �ru� u�. dep. wrrlc�. f 1. trs Joseph Haberfeld, P.G. Aquifer Protection Program Administrator PERMITTEF..: Thomas Walker, P.E., Deputy Executive Director Permit Nuniber: 336267-001-tJC/5W Florida Keys Aqueduct Authority 1VACS 11): 102467 Cudjoe Regional AWRF Date: August 12, 2015 CERTIFICATE OF SERVICE The undersigned designated clerk hereby certifies that this NOTICE OF DRAFT PERMIT and all copies were mailed before the close of business on Wednesday, August 12, 2015, to the listed persons. FILING AND ACKNOWLEDGMENT FILED, on this date, pursuant to Section.120.52, Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged Copies Furnished To: Joseph Haberfeld, FDEP/TLH Douglas Thornton, FDEP/TLH Will L. Evans, FDEP/TLH William Beddow, CH2M David Rhodes, FDEP/SD Gary Maier, FDEP/FM Gus Rios, FDEP/SD Gerrit Bulman, CH2M Cathleen McCarty, FDEP/TLH Leandro Garcia, FDEP/TLH Mary Genung, FDEP/TLH Nancy Marsh, USEPA/ATL Christopher Byrd, BYRD LAW Clerk August 12, 2015 Date joe. haberfeld@dep.state.fl. us douglas. thornton@dep.state fl. us will.1. evans@dep.state fl.us bill. beddow@c h2m. coin david.rhodes@dep.state fl, us garv. ntaier@dep. state fl. us gus.rios a dep.state fl.its gerrit. bttlman@ch2m. corn cathleen. ntccarly@dep.statef 1. us Ieandro.garciaCa) dep. statefl. us tnary.genung@,,dep.stale. fl.us marsh.nancy(c)epa.gov ch ristopher@byrdla wflorida. corn 6'R' N', lfeP.S't (t fCS'h l L5' STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE: OF DRAFT PERMIT The Department of Environmental Protection hereby provides Notice that it has prepared a Draft Permit for the proposed project as detailed in application File No. 3 36267-001 -UC/5W (WACS #102467), subject to the conditions specified in the draft permit and summarized below. The applicant, Florida Keys Aqueduct Authority, Thomas Walker, P.E., Deputy Executive Director, 1100 Kennedy Drive, Key West, Florida 33 04 1, applied on July 1, 2015 for a pen -nit to construct and operationally test a Class V injection well system. The project is located at 780 Blimp Road, Cudjoe Key, Florida 33042. The facility will constrict and operationally test - A non -hazardous Injection Well System, consisting of one Class V, Group 3, injection well (DIW-1), with 12.75-inch steel casing and one (1) dual zone monitor well (DZMW-1) system. The injection well is to be used for the disposal of water meeting the Advanced Wastewater Treatment (AWT) criteria from the Cudjoe Regional Advanced Water Reclamation Facility. Injection is into the Oldsmar Formation at approximately 2800 to 3200 feet below land surface (bls). Monitor well DZMW-1 will monitor two fifty foot thick zones between the depths of 700 to 1700 feet bls, with the selection of intervals dependent upon well construction data. Well DIW-1 will be constructed to Class I injection well standards. The capacity for DIW-1 shall be as described in the Preliminary Design Report and Influent Design Basis of the 2009 Wastewater Treatment Plant application: • Annual Average: 0.94 Million gallons per day (MGD) • Maximum Monthly Average: 1.18 MGD • Peak Daily Average: 2.35 MGD • Peak Hourly Average: 3.09 MGD The Department has permitting jurisdiction under Chapter 403 of the Florida Statutes and the rules adopted thereunder. The project is not exempt from permitting procedures. The Department has determined that a construction and testing pen -nit is required for the proposed work. Any interested person may submit written comments on the draft permit for a minimum of 30 days after publication of this public notice. A public meeting will be held on , 2015, at a.m./p.m. at for the purpose of receiving oral and written comments concerning this project. Written comments shall be submitted to the Department of Environmental Protection, Aquifer Protection Program, 2600 Blair Stone Road, MS 3530, Tallahassee, Florida 32399-2400, which is the office processing this pen -nit application. All comments received within the 30-day period and through the public meeting date, will be considered in formulation of the Department's final decision regarding permit issuance. The application, draft permit, and fact sheet are available for public inspection during nonnal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at the Department of Environmental Protection, South District Office, 2295 Victoria Avenue, Suite 364, P.O. Box 2549, Fort Myers, Florida 33902-2549 and at the Department of Environmental Protection, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400. Any additional information concerning this project may be obtained by contacting Douglas Thornton, Engineering Specialist, at 850.245.8666. 1PMK-.dep.shd ..US FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION BOB MARTINEZ CENTER 2600 BLAIR STONE ROAD TALLAI (ASSES. FLORIDA 32399-'400 Underground Injection Control Class V, Group 3, Injection Well System Construction and Testing Permit Permittee: Thomas Walker, P.E., Deputy Executive Director Florida Keys Aqueduct Authority 1 100 Kennedy Drive Key West, Florida 33041 twalker(&fkaa.com Facility Cudjoe Regional Advanced Water Reclamation Facility 780 Blimp Road Cudjoe Key, Florida 33042 Project: Class V Injection Well System DIW-I. Permit/Certification Permit Number: WACS ID: Date of Issuance: Date of Expiration: Permit Processor: Location County: Latitude: Longitude: Rick Scott Governor Carlos Lopez-Cantera Lt. Governor Jonathan P. Steverson Interim Secretary 336267-001-UC/5W 102467 Draft Draft Douglas Thornton Monroe County UIC 24° 40' 36.66" N 81 ° 30' 30.84" W This permit is issued under the provisions of Chapter 403, Florida Statutes, and the rules adopted thereunder. The above named permittee is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the Department and made a part hereof and specifically described as follows. TO CONSTRUCT AND OPERATIONALLY TEST: A non -hazardous Injection Well System, consisting of one Class V, Group 3, injection well (DIW-1), with 12.75-inch steel casing and one (1) dual zone monitor well (DZMW-1) system. The injection well is to be used for the disposal of water meeting the Advanced Wastewater Treatment (AWT) criteria from the Cudjoe Regional Advanced Water Reclamation Facility (AWRF). Injection is into the Oldsmar Formation at approximately 2800 to 3200 feet below land surface (bls). The approximate monitor depths for the dual zone well are 700-750 feet bls (upper zone) and 1250-1300 feet bls (lower zone) if no USDW is present. If a USDW is present the approximate monitor depths will be 1450-1500 and 1650- 1700 feet bls. The capacity for DIW-1 shall be as described in the Preliminary Design Report and Influent Design Basis of the 2009 Wastewater Treatment Plant application: • Annual Average: 0.94 Million gallons per day (MGD) • Maximum Monthly Average: 1.18 MGD • Peak Daily Average: 2.35 MGD • Peak Hourly Average: 3.09 MGD PE RNIJITTEF.: "Thomas Walker, P.I:., Deputy Executive Director Permit Number: 336267-001-UCI5W Florida Keys Aqueduct Authority VACS Ii): 102467 Cudjoe Regional AWRF IN ACCORDANCE WITH The Application to Construct DF P Form No. 62-528.900(1) received, July 1, 2015, response to the Department's July 16, 2015, request for additional information, and supporting information submitted to this agency. LOCATION: Cudjoe Regional Advanced Water Reclamation Facility, 780 Blimp Road, Cudjoe Key, Florida 33042, in the county of Monroe. The injection and monitoring wells at this facility are designated as follows: Iniection Well Well Name WACS �s,�%laent Testsite ID To%at Wd11' Depth *': Casi g Dirrtytete.r jinehet) Casing car, Tubing Type Casing Depth or Interval* rt l ti'77 f cl 111%e .a 14046 3200 44 Steel 30 34 Steel 275 24 Steel _ 1100 12.75 Steel 2800 Opcn hole From 2800 to 3200 _ 1)j -1 �(lrelwalive B 14046 3200 54� Steel 30 44 Steel 275_ _ 34 Steel 1100 24 Steel 1700 12.75 Steel 2800 Open hole From 2800 to 3200 *Feet Below Land Surface Monitorinp_ Well Well Name WACS Monitoring Well Testsite ID Mrrxritaring It Casing, D%vir+�t�r � Casing 7ppe Casing Depth * Mvnitorlhg Depth 30 Steel 30 20 FRP 700 29831 A Upper "toile From 700 to 750 9lternuli,e ,� — 6.625 FRP 1250 29831 B _ I,Owcl- Zone _ From 1,250 to 1,300 - _ 30 Steel 275 20 FRP 700 DZ.N,IW-1 12.75 Steel 1450 )hcr,tcttii e 13 29831 A Ll } per Zone From 1,450 to 1,500 6.625 FRP _ 1650 29831 B L.ower Zone From 1,650 to 1,700 *Feet Below Land Surface SUBJECT TO: Specific Conditions I -V and General Conditions 1-24 w ww.del). ate.fl.irs PF.RMITTEE: Thomas Walker, P.E., Deputy EX@CLltive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS ID: 102467 Cudjoe Regional AWRF Specific Conditions 1. GENERAL REQUIREMENTS 1. This permit is for Florida Keys Aqueduct Authority to construct and operationally test one Class V, Group 3, injection well (DIW-1), with 12.75-inch steel casing and one (1) dual zone monitor well (DZMW-1) system. This permit does not authorize the constriction or operational testing of any other well or wells. [62-528.440(2)(a)J 2. No underground injection is allowed that causes or allows movement of fluid into an underground source of drinking water (USDW) if such fluid movement may cause a violation of any Primary Drinking Water Standard or may otherwise affect the health of persons. [62-528.440(2)(c)] In the event a well must be plugged or abandoned, the permittee shall obtain a permit from the Department as required by Chapter 62-528, Florida Administrative Code. When no longer used for their intended purpose, these wells shall be properly plugged and abandoned. Within 180 days of well abandonment, the permittee shall submit to the Department the proposed plugging method, pursuant to Rule 62-528.460, F.A.C. [62-528.460(1) and 62-528.435(6)J 4. If injection is to continue beyond the expiration date of this permit the permittee shall apply for, and obtain an operation permit. If necessary to complete the two-year operational testing period, the permittee shall apply for renewal of the construction permit at least 60 days prior to the expiration date of this permit. [62-528.307(2)(a)J II. SITE REQUIREMENTS 1. A drilling pad shall be provided to collect spillage of contaminants and to support the heaviest load that will be encountered during drilling. [62-528.410(9)(b)J 2. No drilling operations shall begin without an approved disposal site for drilling fluids, cuttings, or waste. It shall be the permittee's responsibility to obtain the necessary approval(s) for disposal prior to the start of construction. A detailed disposal plan shall be submitted to the Department prior to the commencement of drilling activities for the injection and monitoring wells. [62-528.410(9)(a)J 3. Specific drilling pad dimensions and design drawings for Department record shall be provided prior to commencing construction and shortly after selection of the drilling contractor. [62-528.410(9)(b)J 4. The water table monitoring wells surrounding the well pads shall be sampled and analyzed prior to drilling the test injection or monitoring wells and then weekly thereafter. Sampling shall include specific conductance (umhos/em), pH (standard units), chloride (mg/L), temperature (C) and water level (feet or PSI). [62-528.410(9) (b)J w ivw. elep.stater.J1.11s PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority NVACS ID: 102467 Cudjoe Regional AWRF 5. Hurricane Preparedness — Upon the issuance of a "Hurricane Watch" by the National Weather Service, the preparations to be made include but are not necessarily limited to the following: a. Secure all on -site salt and stockpiled additive materials to prevent surface and/or groundwater contamination. b. Properly secure drilling equipment and rig(s) to prevent damage to well(s) and on - site treatment process equipment. [62-528.307(1)11)] III. CONSTRUCTION AND TESTING REQUIREMENTS A. General 1. Any construction, modification, repair, or abandonment of a well shall be performed by a Florida licensed water well contractor, licensed under Chapter 62-532, F.A.C., to engage in the business of construction, modification, repair or abandonment of a well. [62-532.200] 2. Well construction shall follow the requirements of Rule 62-532.500 for Water Well Construction Standards. [62-532, 500] 3. The measurement points for drilling and logging operations shall be surveyed and referenced to the North American Vertical Datum of 1988 (NAVD 88) prior to the onset of drilling activities for the injection well and associated dual zone monitoring well. [62-160.240(2)] 4. Blow-out preventers or comparable flow control devices shall be installed on the wells prior to penetration of the Floridian aquifer system. [62-528.410(9)(c)J 5. The Department shall be notified 7 days prior to the mobilization of drilling operations to the site. [62-528.307(1)(g)J 6. Waters spilled during construction or testing of the injection well system shall be contained and properly disposed. [62-528.410(9)(b)J 7. If additives that were not approved in the permit application are used during grouting, for lost circulation, or for any other reason, information on their properties shall be submitted to FDEP prior to their use for Department review and approval. [62-528.410(5) (c)J 8. No more than 6% bentonite gel should be used to cement any casing unless advance approval is received from the Department due to conditions found during the drilling and logging of the well. [62-528.420(_5)(c)J ;v",ov. dep. stu1e.Jl. us PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit lumber: 336267-001-UC/5W Florida Keys Aqueduct Authority NVACS ID: 102467 Cudjoe Regional AWRF B. Evaluation and Testing 1. The construction, geophysical logging program, and packer testing program shall be implemented in accordance with this permit and as proposed in the following submittals: • July 1, 2015, "Well Construction Application"; • July 27, 2015, Response to RAI; • Other approved submittals received by the Department. [62.528.307(1)(b)) 2. Exact depths of casing seats and monitoring intervals will be determined based on field conditions and the results obtained during the construction and testing program, and are subject to the conditions of this permit. The injection well will be constructed first followed by the monitoring wells. [62-528.410(4)(c)J 3. Packer tests shall be conducted in both DIW-1 and DZMW-1 to identify confinement and the base of the USDW. a. The program shall, at a minimum include five packer tests in each of DIW and DZMW-1, at intervals which are to be field determined. b. At least one straddle packer test shall be conducted in both the proposed upper and lower monitoring intervals of DZMW-l. C. Packer tests shall be conducted in the anticipated confining intervals, from the lowermost zone of the USDW (if existent) to the top of the injection zone. Results from the packer tests will contribute to the demonstration of confinement. To the extent feasible, the packer tests shall be performed over intervals that are sufficiently narrow so as not to include high hydraulic conductivity beds. d. Water samples shall be collected from each packer test, and analyzed for total dissolved solids, chlorides, conductivity, ammonia, total Kjeldahl nitrogen, and sulfate. [62-528.405(1)(a) and (2)(a)J Department approval is required prior to the following stages of construction and testing: a. Contract documents and spud date b. Intermediate (24-inch) casing seat in each injection well c. Final (12.75-inch) casing seat in each injection well d. Intermediate (12.75-inch or 20-inch) casing seat in monitoring well e. Final (6.625-inch O.D.) casing seat in monitoring well f. Monitoring zone selection (upper and lower zones) g. Short-term injection test h. Operational testing [62-528.410(4)(c) and 62-528.420(4)(()J The depth of the USDW and the background water quality of the monitoring zones shall be determined during drilling and testing using the following information: a. Water samples from packer test data with analysis and interpretation wwiswlep.siaie.f 1. its PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS ID: 102467 Cudjoe Regional AWRF b. Geophysical logging upon reaching the total depth of the appropriate pilot hole interval including the following logs: caliper, gamma, dual induction, borehole compensated sonic, pumping flowmeter, temperature, and fluid resistivity. [62-528.405(1)(a) and 62-528.405(3)(b)] 6. The upper monitoring interval shall be positioned at or slightly below the base of the USDW (Alternative B as defined in the application and p. 2 of this permit). This zone must be established within the lowermost portion of the USDW unless it can be demonstrated that no zone is present that can produce adequate water for collection of representative ground water samples. It is acceptable for the TDS of this zone to be slightly greater than 10,000 mg/L. [62-528.425(1)(g)4.] 7. The lower monitoring interval shall be positioned in a zone below the base of the USDW that can produce adequate water for collection of representative ground water samples (Alternative B as defined in the application and p. 2 of this permit). The purpose of the lower monitor zone is to verify the effectiveness of the confining unit and external mechanical integrity of the injection well. This zone shall be placed far enough below the base of the USDW to function as an early warning for fluid movement. [62-528.425(1)(g)4.] 8. If no USDW is present below the surficial aquifer (Alternative A as defined in the application and p. 2 of this permit), two monitoring intervals shall be selected to verify the effectiveness of the confining unit whose depths are consistent with the intervals proposed for Alternative A, with allowance for site -specific hydrogeologic conditions. �. The data and analysis supporting the selection of the monitoring intervals shall be submitted to the Department after the collection, interpretation, and analysis of all pertinent cores, geophysical logs, packer tests and analysis of fluid samples. The Department shall approve the final selection of the specific upper and lower monitoring intervals prior to monitor well completion. [62-528.420(3)(c)] 10. To identify the upper and lower monitoring zones, the following information from the injection well and all available on -site sources of data shall be analyzed, interpreted and submitted for UIC review and approval: a. Borehole televiewer or downhole television survey b. The characteristics of the transition zone (especially regarding TDS) in the vicinity of the USDW c. Packer test data including water quality (TDS, chlorides, sulfate, specific conductance, ammonia, and total Kjeldahl nitrogen, at a minimum) d. The specific capacity of the proposed upper and lower monitoring zones based on packer testing results e. Tile identification of the base of the USDW [62-528.420(4)(c)] 11. Confinement shall be demonstrated using at a minimum, directly measured lithologic properties, geophysical evidence, and tests performed while pumping the formation. [62-528.405 (2) (c)] wwmdep.stale 1.tos PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS ID: 102467 Cudjoe Regional AWRF 12. Test results pertaining to confinement shall include and/or specifically reference the following informational and quality control items: a. Information that documents the calibration of tools, including field checks prior to testing. b. The conditioning/development of the borehole prior to logging, including the techniques used and the time periods in which they were applied, and c. Pertaining to packer/pump testing - recording the pumping rate regularly throughout the test to account for possible variations in the pumping rate, and providing information regarding the detection of packer leaks, if any, during testing. [62-528.405(2)(c)J 13. Representative samples of circulation fluid shall be collected when drilling with water, air, or reverse air during the drilling of the pilot holes of Injection Well DIW-1 and Monitoring Well DZMW-1. Representative samples of circulation fluid shall be collected at a minimum of every 90 feet in drilling. The circulation fluid samples shall be analyzed for chloride and specific conductance at a minimum. 14. At sites where previous injection has occurred, the representative samples of circulation fluid below the intermediate 24-inch casing in the injection well shall be analyzed for TDS, chloride, sulfate, specific conductance, ammonia, and total Kjeldahl nitrogen, at a minimum. [62-528.405(3)(b)J 15. If effluent is encountered or suspected during pilot hole drilling and testing, the Department shall be notified immediately by telephone and in writing and immediate appropriate precautionary measures shall be taken to prevent any upward fluid movement. [62-528.440(2)(d)J C. Mechanical Integrity Mechanical Integrity. a. Injection is prohibited until the permittee affirmatively demonstrates that the well has mechanical integrity. Prior to operational testing the permittee shall establish, and thereafter maintain the mechanical integrity of the well at all times. b. If the Department detennines that the injection well lacks mechanical integrity, written notice shall be given to the permittee. c. Within 48 hours of receiving written notice that the well lacks mechanical integrity, unless the Department requires immediate cessation of injection, the permittee shall cease injection into the well unless the Department allows continued injection pursuant to subparagraph d below. d. The Department shall allow the permittee to continue operation of a well that lacks mechanical integrity if the permittee has made a satisfactory demonstration that fluid movement into or between underground sources of drinking water is not occurring. [62-528.307(2) (�J wivn'.1tep.state.11. its PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS ID: 102467 Cudjoe Regional AWRF 2. Mechanical integrity of each injection well shall be determined pursuant to Rule 62- 528.300(6)(b) and (c), F.A.C. For wells with a fluid -filled casing/tubing annulus, this includes both continuous annular monitoring and a pressure test of the casing/tubing annulus every 5 years. 3. Verification of pressure gauge calibration must be provided to the Department representative at the time of the test and in the certified test report. [62-528.300(6)(1)J 4. The Department's South District office must be notified a minimum of seventy-two (72) hours prior to all testing for mechanical integrity on the injection wells. The testing procedure must be approved by the Department before testing begins. All testing must be initiated during daylight hours, Monday through Friday. An evaluation of all test results must be submitted with all test data. [62-528.300(6)(1)J D. Surface Equipment l . The integrity of the monitoring zone sampling systems shall be maintained at all times. Sampling lines shall be clearly and unambiguously identified by monitoring zone at the point at which samples are drawn. All reasonable and prudent precautions shall be taken to ensure that samples are properly identified by monitoring zone and that samples obtained are representative of those zones. Sampling lines and equipment shall be kept free of contamination with independent discharges and no interconnections with any other lines. [62-528.307(1)(1) and 62-528.307(3)(b)J 2. The surface equipment for the each injection well disposing of domestic (municipal) effluent shall maintain compliance with Chapter 62-600.540(4), F.A.C., for water hammer control, screening, access for logging and testing, and reliability and flexibility in the event of damage to the well and effluent piping. [62-600.540(4), 62-528.307(1)11), and 62-528.307(3)(b)J 3. Injection wells not disposing of domestic (municipal) effluent shall maintain compliance with Chapter 62-528.450(2)(j), F.A.C. for water hammer control, as well as access for logging and testing, and reliability and flexibility in the event of damage to the well and effluent piping. [62-528.450(2)6), 62-528.307(1)()), and 62-528.307(3)(b)J 4. The surface equipment and piping for the injection and monitoring wells shall be kept free of corrosion at all times. [62-528.307(1)(f) and 62-528.307(3)(b)J 5. Spillage onto the injection well pad(s) during constniction activities, and any waters spilled during mechanical integrity testing, other maintenance, testing or repairs to the system(s) shall be contained on the pad(s) and directed to a sump which in turn discharges to the pumping station wet well or via other approved means to the injection well system(s). 162-528.307(1)(1) and 62-528.307(3)(b)J 6. The injection well pads shall be maintained and retained in service for the life of the injection wells. The injection well pads are not, unless specific approval is obtained from the Department, to be used for storage of any material or equipment at any time. [62-528.307(1)0) and 62-528.307(3)(b)J wirscAyi.st ate.f1.us PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS ID: 102467 Cudjoe Regional AWRF 7. Four surficial aquifer monitoring wells, identified as Pad Monitoring Wells (PMWs), shall be located near the corners of the pads to be constructed for DIW-1 and DZMW- 1, and shall be identified by location number and pad location, i.e. NW, NE, SW, and SE. If located in a traffic area the well head(s) must be protected by traffic bearing enclosure(s) and cover(s). Each cover must lock and be specifically marked to identify the well and its purpose. The PMWs shall be sampled as follows: a. During the constriction and associated testing phases, the PMWs shall be sampled weekly for chlorides (mg/L), specific conductance (µmho/cm or µS/cm), temperature, and water level relative to the North American Vertical Datum of 1988 (NAVD 88). Initial PMW analyses shall be submitted prior to the onset of drilling activities. b. The PMWs shall also be sampled for total dissolved solids (mg/L) during the first four weeks of PMW sampling and at all times when specifically requested by the Department. c. The results of the PMW analyses shall be submitted to the Department in the weekly progress report. The PMWs shall be retained in service throughout the construction phase of the project. Upon completion of construction, the permittee may submit a request to the Department for cessation of sampling followed by capping, or plugging and abandonment of these wells. [62-528.410(9)(b)J IV. QUALITY ASSURANCE/QUALITY CONTROL The permittee shall ensure that the construction and operational testing of this injection well system shall be as described in the application and supporting documents. Any proposed modifications to the permit shall be submitted in writing to the Tallahassee office of the Aquifer Protection Program for review and clearance prior to implantation. Changes of negligible impact to the environment and staff time will be reviewed by the program manager, cleared when appropriate and incorporated into this permit. Changes or modifications other than those described above will require submission of a completed application and appropriate processing fee as per Rule 62-4.050, F.A.C. [62- 528.100, 62-4.050] Proper operation and maintenance include effective performance and appropriate quality assurance procedures; adequate operator staffing and training; and adequate laboratory and process controls. [62-528.307(2)(b)J All water quality samples required by this permit shall be collected in accordance with the appropriate Department Standard Operation Procedures (SOP), pursuant to Chapter 62-I60, F.A.C., Field Procedures. A certified laboratory shall conduct the analytical work, as provided by Chapter 62-160, F.A.C., Laboratory Certification. Department approved test methods shall be utilized, unless otherwise stated in this pen -nit. All calibration procedures for field testing and laboratory equipment shall follow manufacturer's instrumentation manuals and satisfy the requirements of the Department SOPS. A listing of the SOPS pertaining to field and laboratory activities is available at the FDEP website at: bttp://www.dep.state.fl-us/water/sas/sop/sops.htm. [62-4.246, 62-160] wis,m.dep.stale.ft.us PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-IJC/5W Florida Keys Aqueduct Authority NVACS ID: 102467 Cudjoe Regional AWRF 4. All indicating, recording and totalizing devices associated with the injection well system shall be maintained in good operating condition and calibrated annually at a minimum. The pressure gauges, flow meter, and chart records shall be calibrated using standard engineering methods. [62-528.307(1)69 and 62-528.307(2)(b)J 5. All reports submitted to satisfy the requirements of this permit shall be signed by a person authorized tinder Rule 62-528.340(1), F.A.C., or a duly authorized representative of that person under Rule 62-528.340(2), F.A.C. All reports required by this permit which are submitted to the Department shall contain the following certification as required by Rule 62-528.340(4), F.A.C.: I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations. [62-528.340(1), (2), and (4)J 6. Analyses shall be conducted on unfiltered samples, unless filtered samples have been approved by the South District as being more representative of ground water conditions. [62-520.310(5)] 7. A professional engineer registered pursuant to Chapter 471, F.S., shall be retained throughout the construction period to be responsible for the construction operation and to certify the application, specifications, completion report and other related documents. The Department shall be notified immediately of any change of engineer. [62-528.440(5)(1))J 8. Continuous on -site supervision by qualified personnel (engineer and/or geologist, as applicable) is required daring all testing and geophysical logging operations. [62-528.440(5)(b)J V. REPORTING REQUIREMENTS 1. The drilling and construction schedule, site layout of drilling pad, and pad monitoring well locations shall be submitted to the Department during site preparation but prior to drilling operation commencement for the injection well system. [62-528.430(2)(a)J 2. Weekly progress reports shall be submitted to the Department's Tallahassee and South District offices throughout the construction period for each well. These reports, which may be submitted by electronic mail, shall be submitted within 48 hours of the end of the period of record and shall include at a minimum the following infornation: a. A cover letter summary of the daily engineer report, driller's log and a projection for activities in the next reporting period 10 wicrv. dep. statefl. us PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS ID: 102467 Cudioe Regional AWRF b. Daily engineers reports and driller's/work logs with detailed descriptions of all drilling progress, cementing, testing, logging, and casing installation activities. c. Description of daily footage drilled by diameter of bit or size of hole opener or reamer being used. d. Collection of drilling cuttings every 10 feet and at every formation change; e. Description of work during installation and cementing of casing, including amounts of casing and cement used. Details of cementing operations shall include the number of cementing stages, and the following information for each stage of cementing: the volume of cement pumped, the theoretical fill depth, and the actual tag depth. From both the physical tag and the geophysical logs, a percent fill shall be calculated. An explanation of any deviation between actual versus theoretical fill shall be provided f. Details of the additions of salt or other materials to suppress well flow, including the date, depth and amount of material used. g. Description of testing accomplished including (but not limited to) pumping and packer tests h. Lithologic logs and core descriptions with cuttings description, formation and depth encountered i. Geophysical logs, video logs, and deviation survey results. j. Water quality analyses, including but not limited to the weekly water quality analysis and water levels for the PMWs. k. Well development records 1. Interpretations included with all test results and logs submitted. m. Documentation of disposal of drilling fluids, cuttings, formation water, or waste as per specific condition II.2. n. Description of any construction problems that developed during the reporting period and current status; o. Copies of the driller's log are to be submitted with the weekly summary; p. Description of any deviation survey conducted; [62-528.430(1) and 62-528.410(9)(a)J The final selection of specific injection and monitoring intervals must be approved by the Department. In order to obtain an approval, the permittee shall submit a written request to the Department's Tallahassee office. All casing seat requests for the injection well(s) and the monitoring well(s) shall be accompanied by technical justification. To the extent possible, each casing seat request should address the following items: a. Lithologic and geophysical logs with interpretations, as the interpretations relate to the casing seat. b. Water quality data (including but not necessarily limited to TDS concentrations) c. Identification of confining units, including hydrogeologic data and interpretations d. Identification of monitoring zones I WhIll.dep.state fl. its PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS Ill: 102467 Cudjoc Rcgional AWRF e. Casing depth evaluation (mechanically secure fonnation, potential for grout seal) f. Lithologic drilling rate and weight on bit data, with interpretations (related to the casing seat) g. Identification of the base of the USDW using water quality and geophysical log interpretations h. A certified evaluation of all logging and test results, submitted with test data. i. Transmissivity or specific capacity of proposed monitoring zone J. Packer test drawdown curves and interpretation [62-528.410(4)(c), 62-528.420(4)(c) and 62-528.605(2)J The short-term injection test request shall contain the following justifications: a. Cement bond logs and interpretation b. Final downhole television survey with interpretation c. Demonstration of mechanical integrity, which shall include radioactive tracer test results, pressure testing results, and temperature logging results (if the injection test is to be after any of these mechanical integrity tests ) d. Reasonable assurance that adequate confinement exists e. Planned injection testing procedures f. Proposed source water to be used. Per Rule 62-528.405(3)(b), F.A.C., if an adequate water supply for the injection test does not exist, and the data collected during drilling provide assurance of the presence of confining bed(s), the applicant shall, after demonstrating mechanical integrity pursuant to Rules 62-528.300(6)(b)2. and (c), F.A.C., be allowed to use an alternate source for testing only with specific prior written authorization from the Department as described in Rule 62-528.100(2), F.A.C. An analysis of the alternate water source according to the table below is required prior to Department approval: 12 ;vfiw.dc1.,.state f7.us PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority 1VACS ID: 102467 Cudjoe Regional AWRF Water Source Required Analyses Potable Water No analysis needed A copy of the latest comprehensive analysis submitted to the Department's Domestic Wastewater domestic wastewater program A copy of the latest comprehensive analysis submitted to the Department's Desalination industrial wastewater program. If more than one year old, sample the Concentrate or Other water for the parameters required for monthly monitoring of the Industrial Wastewater wastewater in Specific Condition VI. Sample the water for: • total dissolved solids (mg/L) • chloride (mg/L) • specific conductance (temperature compensated, mmho/cm or mS/cm) • total suspended solids (TSS) (mg/L) • nitrogen, ammonia, total as N (mg/L) • nitrogen, total Kjeldahl as N (TKN, mg/L) • nitrogen, nitrate, total as N (mg/L) • sodium (mg/L) • potassium (mg/L) Ground Water • calcium (mg/L) • magnesium (mg/L) • total iron (mg/L) • bicarbonate (mg/L) • phosphorous, total as P (mg/L) • pH (standard units, s.u.) • sulfate, total as SO4 (mg/L) • field temperature (°C) • gross alpha (pCi/L) • combined radium-226 and radium-228 Ci/L As above for ground water, with the additional constituents: • total and fecal coliform (cts/100m1), Surface Water • E. Coli (cts/100ml), Enterococci (cts/100m1), and • turbidity NTU). (62-528.405(3) (b)J Upon completion of analysis of cores and sample cuttings recovered during the construction of wells covered by this permit (when no longer needed by the well owner), the permittee shall contact the Geological & Geotechnical Data Acquisition Program of the Florida Geological Survey (FGS) to arrange for the transfer of the cores and cuttings. The FGS shall also be contacted to arrange for the collection of 100 rnl water samples, with nitric acid preservative for metal analysis, at the end of each packer test (where sufficient water is available) and aquifer background sample collection events. [62-528.450(5)] 13 wives. dep. state.Jl. ris PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC15W Florida Keys Aqueduct Authority WACS ID: 102467 Cudjoe Regional AWRF All cores, cuttings, and water samples for FGS shall be shipped to the Florida Geological Survey, Geological & Geotechnical Data Acquisition Program, 3915 Commonwealth Boulevard, Tallahassee, Florida 32399. All cores and samples shall clearly identify the site name, well name/number, depths of samples/cores, and the latitude/longitude location of the well(s) using the form in this pen -nit. [62-528.450(5)] A final report of the construction and testing of the injection well(s) and monitoring well(s), shall be submitted no later than 120 days after commencement of operational testing, pursuant to Rule 62-528.430(1)(e), F.A.C. In addition, a copy of the cover letter for the report shall be sent to the U. S. Environmental Protection Agency, Region 4,1-11C program, 61 Forsyth St. SW, Atlanta, GA 30303-8909. This report shall include as a minimum, definitions of the injection interval, all relevant confining units, the depth of the base of the USDW, and all monitoring zones, including all relevant data and interpretations. [62-528.450(5)] VI. OPERATIONAL TESTING AND MONITORING REQUIREMENTS A. Operational Testing 1. The permittee shall conduct operational testing of the injection well system to demonstrate that the well can absorb the design and peak daily flows that are expected, prior to granting approval for operation. [62-528.450(3)(a)J 2. Prior to operational testing, the permittee shall comply with the requirements of rule 62-528.450(3)(a),(b), and (c), F.A.C. [62-528.307(2)(e)J 3. The operational testing of the injection well system under this permit shall not commence without written authorization from the Department. [62-528.450(3)(6)J 4. Prior to operational testing approval, the following items must be submitted with the request for operational testing approval for Department review and approval: a. Lithologic and geophysical logs with interpretations. b. A copy of the borehole television survey(s) or borehole televiewer log(s) of the injection well with interpretation. c. Certification of mechanical integrity and interpreted test data. d. Results of the short-tenn injection test with interpretation of the data. e. A description of the actual injection procedure including the anticipated maximum pressure and flow rate at which the well will be operated under normal and emergency conditions. f. Information concerning the compatibility of the injected waste with fluids in the injection zone and minerals in both the injection zone and the confining zone. g. Certification of completion of well construction from water well contractor and certification by the Engineer- of Record that permit conditions are rnct. 14 ;vm-w. dep. shrte JI. us PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit lumber: 336267-001-UC/5W Florida Keys Aqueduct Authority VACS ID: 102467 Cudjoe Regional AWRF h. Surface equipment (including piping, pressure gauges and flow meters, and all appurtenances) completion certified by the Engineer of Record. i. Draft operation and maintenance manual, including a description of surge and water hammer control and emergency discharge management plan procedures. The emergency discharge system must be fully constructed and operational (ready to operate) prior to approval of operational testing. j. Calibration certificates for pressure gauges and flow meters. k. Signed and sealed record "as -built" engineering drawings of the injection well system including all well construction, subsurface and surface piping and equipment, and appurtenances. 1. Demonstration of confinement and definition of the injection and confining sequences shall utilize data collected during the drilling, logging, and testing of the injection and monitoring wells. This submittal shall be prepared, signed, and sealed by a Florida Registered Professional Geologist or appropriately qualified Florida Registered Professional Engineer. m. Background water quality data from the monitoring and injection zones, analyzed for primary and secondary drinking water standards (62-550, F.A.C.) excluding asbestos, dioxin, butachlor, acrylamide, and epichlorohydrin. The results submitted as part of the Facility's request for Department authorization to conduct injection testing may be referenced. n. Analysis of the injected water, to be submitted within 60 days after start-up of operational testing of DIW-1, for the same parameters as in condition VI.AA.m., above. o. Other data obtained during well construction needed by the Department to evaluate whether the well will operate in compliance with Department rules. p. A survey indicating the exact location in metes and bounds of all wells authorized by this permit shall be provided prior to issuance of an operating permit. [62-528.450 (3)(a)3.i. and 62-528.455(1)(c)6J 5. Pressure gauges and flow meters shall be installed on the injection well prior to initiating injection activities at the site. [62-528.450(3)(a)J 6. Prior to the authorization of operational testing by the Department, the permittee shall contact the South District office to arrange a site inspection. The inspection will determine if the conditions of the permit have been met and to verify that the injection well system is operational. During the inspection, emergency procedures and reporting requirements shall be reviewed. [62-528.450(3)(c)J 7. The Engineer of Record or designated qualified representative must be present for the start-up operations and the Department must be notified in writing of the date operational testing commenced for the subject well. [62-528.440(5)(b)J 15 ivivnv.dep.state f1.us PERMITTF.,E: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority VACS ID: 102467 Cudjoe Regional AWRF B. Monitoring 1. The permittee shall submit monthly to the Department the results of all injection well and monitoring well data required by this permit no later than the last day of the month immediately following the month of record. The report shall include: a. A cover page summarizing the current status of all monthly activities, including the certification and signature required in condition I1.5.; b. Operational and water quality data in a tabular format. The following identifying infonnation must be included on each data sheet: i. Facility Name ii. Well Name iii. UIC Permit Number iv. WACS Facility ID v. WACS Testsite ID (on appropriate data sheet) as provided on the Injection Well and Monitoring Well tables on page 2 of this permit. c. Laboratory pages and supporting documentation. [62-528.307(3)(d)] The report may be sent via electronic mail in Adobe7m (.pdf) format to the following Program e-mail addresses: South District SouthDistrict@dep.state.fl.us Tallahassee — UIC Program Tal_UIC@dep.state.fl.us If a paper copy of the report is submitted, it should be sent to Department staff at the following addresses: 2295 Victoria Avenue, Suite 364 South District P.O. Box 2549 Fort Myers, Florida 33902-2549 Tallahassee — UIC Program 2600 Blair Stone Road, MS 3530 Tallahassee, Florida 32399-2400 [62-528.307(3)(d)] 16 www.del).suttefl.us PERMITTED; Thomas Walker, P.F., Deputy Executive Director Permit \1IIuhvr: 336267-001-UC/5W Florida Keys Aqueduct Authority NVACS 11): 102467 Cudjoe Regional AWRF The injection system shall be monitored in accordance with Rules 62-528.425(1)(g) and 62-528.430(2), F.A.C. The following injection well performance data and monitor zone data shall be recorded and reported in the Monthly Operating Report (MOR) as indicated below. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity. [62-528.307(2)(d), 528.430(2), and 62-528.450(3)(b)5.1 PARAMETER UNIT RECORDING--- FREQUENCY FREQUENCY OF ANALYSES QIW�:1 1404E - DZMW-1 29831A A 29831E Injection Pressure, max. psi continuous Injection Pressure, min. psi continuous ° Injection Pressure, avg, psi continuous " Flow Rate, max. gpm continuous _ Flow Rate, min. gpm Continuous Flow Rate, avg. gpm continuous ' Water Level or Pressure max. ft NAVD or psi continuous ' Water Level or Pressure min. ft NAVD or psi continuous Water Level or Pressure avg. ft NAVD or psi continuous Volume AWRF Effluent Injected mg daily/monthly Temperature (field)' std. units °C grab grab W W Specific Conductivityb µmhos/cm grab W Nitrate + Nitrite (as N) Ammonia mg/L mg/L grab grab M M W Total K'eldahl Nitrogen (TKN) mg/L grab M W Sulfate mg/L grab W Total Dissolved Solids mg/L grab W Chloride mg/L grab W Sodium mg/L grab M Calcium mg/L grab M _ Potassium mg/L grab M Magnesium mg/L grab - ---- --- M- Iron mg/L grab M Bicarbonate mg/L grab M See injection ti-ell and niomtorin-g well tables at besinnnrg of pernut toa wore nuornruurn. D - daily; W - Weekly; M - monthly; - Operational data reporting for flows, pressures and water levels: daily max, min and average from continuous reporting; monthly max, min and average (calculated from daily averages). ' - Field samples Weekly monitoring well parameters may be requested to be reduced to monthly after a 6-month testing period and written Department approval. 17 wwin.dep..srare.Jl.rrs PERIMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority VACS 11): 102467 Cudjoe Regional AWRF A specific injectivity test shall be performed monthly on the injection well as required by Rule 62-528.450(3)(b)6., F.A.C. Pursuant to Rule 62-528.430(2) (d), F.A.C, the specific injectivity test shall be perfonmed with the pumping rate to the well set at a predetermined level and reported as the specific injectivity index (gallons per minute/specific pressure). The pumping rate to be used shall be based on the expected flow, the design of the pump types, and the type of pump control used. As part of this test, the well shall be shut-in for a period of time necessary to conduct a valid observation of pressure fall -off. The specific injectivity test data shall be submitted along with the monitoring results of the injection and monitoring well data. The testing may be reduced to quarterly after a minimum of six months of operational testing and with written Department approval. [62-528.430(2) (b) and (d); 62-528.450(3)(b)6.J 5. Pertaining to the evacuation (purging) of monitoring wells, which is required prior to the collection of samples for the Monthly Operating Reports (MORs), the facility may elect to follow either one of the following two purging protocols: a. The protocol stated below: A minimum of three well volumes of fluid shall be evacuated from the monitoring systems prior to sampling for the chemical parameters listed above. Sufficient purging shall have occurred when either of the following has occurred: 1) pH, specific conductance and temperature when sampled, upon purging the third or subsequent well volume, each vary less than 5% from that sampled upon purging the previous well volume; or 2) Upon purging the fifth well volume. b. The following protocol taken from DEP-SOP-001 /0 1 (Field Procedures): 1) Purge until the water level has stabilized (well recovery rate equals the purge rate), then purge a minimum of one well volutne, and then collect the first set of stabilization parameters, namely pH, specific conductance and temperature; 2) Thereafter, collect stabilization parameters > every '/4 well volume; 3) Purging shall be complete when either of the following have occurred: a) 3 consecutive readings of the parameters listed below are within the following ranged']: ■ pH f 0.2 Standard Units ■ Specific Conductance t 5.0% of reading ■ Temperature t 0.2°C b) Upon purging the fifth well volume. [62-160.210(1) and 62-528.430(2)J IQ Provided dissolved oxygen in the groundwater of the zone being monitored is < 20% of saturation for the measured temperature and turbidity is <_ 20 NTUs. This assumption holds true for groundwater in most zones of the Floridan aquifer. 18 ► +wit•. dep.slrrle fl. its PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority VACS Ill: 102467 Cudjoe Regional AWRF 6. The flow from the monitoring zones during well evacuation and sampling shall not be discharged to surface waters or aquifers containing an underground source of drinking water. Waters purged from monitoring wells in preparation for sampling shall be diverted to the injection well head via the pad drainage system, wet well, or treatment plant. [62-4.030, 62-620.320] VII. ABNORMAL EVENTS 1. In the event the permittee is temporarily unable to comply with any of the conditions of a permit due to breakdown of equipment, power outages or destruction by hazard of fire, wind, or by other cause, the permittee of the facility shall notify the South District office. [62-528.415(4)(a)] 2. Notification shall be made in person, by telephone, or by electronic mail (e-mail) within 24 hours of breakdown or malfunction to the South District office. [62-528.307(1)(x)] 3. A written report of any noncompliance referenced in Specific Condition (1) above shall be submitted to the South District office and the Tallahassee office within five days after its occurrence. The report shall describe the nature and cause of the breakdown or malfunction, the steps being taken or planned to be taken to correct the problem and prevent its reoccurrence, emergency procedures in use pending correction of the problem, and the time when the facility will again be operating in accordance with permit conditions. [62-528.415(4)(b)] VIII. EMERGENCY DISPOSAL 1. All applicable federal, state and local permits must be in place to allow for any alternate discharges due to emergency or planned outage conditions. [62-528.415(4)(c)1] 2. Any proposed changes in emergency disposal methods shall be submitted to the South District office and the Tallahassee office for review and approval prior to implementation. [62-528.415(4)(c)] 3. The emergency disposal method must be fully operational in the event of planned or emergency outages of the injection well system. [62-528.415(4)(c)2] IX. FINANCIAL RESPONSIBILITY I . The permittee shall maintain at all times the financial resources necessary to close, plug, and abandon the injection and associated monitoring wells. [62-528.435(9)] 2. The permittee shall annually review the cost estimate for plugging and abandonment. Upon the occurrence of the plugging and abandonment cost estimate exceeding, by 10 percent or more on an annual basis, the cost estimate upon which the current financial 19 wnm . dep. state.JL IA PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-tJC/5W Florida Keys Aqueduct Authority WACS 11): 102467 Cudjoe Regional AWRF responsibility is based, the permittee shall submit to the Department certified financial documentation necessary to amend, renew, or otherwise replace the existing financial responsibility pursuant to Rule 62-528.435(9)(b), F.A.C. and the conditions of this permit. Documentation that the annual updates are being conducted shall be submitted thirty (30) months after the date of permit issuance. [62-528.435(9)(b)] In the event that the mechanism used to demonstrate financial responsibility should become insufficient or invalid for any reason, the permittee shall notify the Department's Tallahassee office in writing within 14 days of such insufficiency or invalidation. The permittee shall within 90 days of said notification submit to the Department's Tallahassee office for approval new financial documentation certifying either the remedy of current financial insufficiency or resolution of the financial instrument invalidation in order to comply with Rule 62-528.435(9)(b), F.A.C, and the conditions of this permit. [62-528.435(9)(b)] General Conditions 1. The terms, conditions, requirements, limitations and restrictions set forth in this permit are "pen -nit conditions" and are binding and enforceable pursuant to section 403.141, F.S. [62-528.307(1)(a)J 2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings or exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this pen -nit may constitute grounds for revocation and enforcement action. [62-528.307(1)(b)J As provided in subsection 403.087(7), F.S., the issuance of this permit does not convey any vested rights or exclusive privileges. Neither does it authorize any injury to public or private property or any invasion of personal rights, nor infringement of federal, state, or local laws or regulations. This permit is not a waiver of or approval of any other Department pen -nit that may be required for other aspects of the total project which are not addressed in this permit. [62-528.307(1)(c)) 4. This permit conveys no title to land, water, does not constitute State recognition or acknowledgment of title, and does not constitute authority for the use of submerged lands unless herein provided and the necessary title or leasehold interests have been obtained from the State. Only the Trustees of the Internal Improvement Trust Fund may express State opinion as to title. [62-528.307(1)(d)J 5. This permit does not relieve the permittee from liability for harm to human health or welfare, animal, or plant life, or property caused by the construction or operation of this permitted source, or from penalties there from; nor does it allow the permittee to cause pollution in contravention of Florida Statutes and Department rules, unless specifically authorized by an order from the Department. [62-528.307(1)(e)J 20 wtvw.dep.stare.f .trs PERMITTEE., Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC115W Florida Keys Aqueduct Authority WACS ID: 102467 Cudjoe Regional AWRF 6. The pennittee shall properly operate and maintain the facility and systems of treatment and control (and related appurtenances) that are installed and used by the permittee to achieve compliance with the conditions of this permit, or are required by Department rules. This provision includes the operation of backup or auxiliary facilities or similar systems when necessary to achieve compliance with the conditions of the permit and when required by Department rules. [62-528.307(1)(fl1 7. The permittee, by accepting this permit, specifically agrees to allow authorized Department personnel, upon presentation of credentials or other documents as may be required by law and at reasonable times, access to the premises where the permitted activity is located or conducted to: a. Have access to and copy any records that must be kept under conditions of this permit; b. Inspect the facility, equipment, practices, or operations regulated or required under this permit; and c. Sample or monitor any substances or parameters at any location reasonably necessary to assure compliance with this permit or Department rules. d. Reasonable time will depend on the nature of the concern being investigated. [62-528.307(1)(g)1 8. If, for any reason, the permittee does not comply with or will be unable to comply with any condition or limitation specified in this permit, the permittee shall immediately provide the Department with the following information: a. A description of and cause of noncompliance; and b. The period of noncompliance, including dates and times; or, if not corrected the anticipated time the noncompliance is expected to continue, and steps being taken to reduce, eliminate, and prevent the recurrence of the noncompliance. The permittee shall be responsible for any and all damages which may result and may be subject to enforcement action by the Department for penalties or for revocation of this permit. [62-528.307(1)(h)1 In accepting this permit, the permittee understands and agrees that all records, notes, monitoring data and other information relating to the construction or operation of this permitted source which are submitted to the Department may be used by the Department as evidence in any enforcement case involving the permitted source arising under the Florida Statutes or Department rules, except where such use is proscribed by sections 403.111 and 403.73, F.S. Such evidence shall only be used to the extent it is consistent with the Florida Rules of Civil Procedure and appropriate evidentiary rules. [62-528.307(1)(i)1 10. The permittee agrees to comply with changes in Department rules and Florida Statutes after a reasonable time for compliance; provided, however, the permittee does not waive any other rights granted by Florida Statutes or Department rules. [62-528.307(1)0)1 21 www. dep.srafe.f 1. us PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS ID: 102467 Cudjoe Regional AWRF 11. This pennit is transferable only upon Department approval in accordance with rules 62-4.120 and 62-528.350, F.A.C. The pennittee shall be liable for any non- compliance of the pennitted activity until the transfer is approved by the Department. [62-528.307(1)(k)J 12. This permit or a copy thereof shall be kept at the work site of the permitted activity. [62-528.307(1)(1)J 13. The permittee shall comply with the following: a. Upon request, the permittee shall furnish all records and plans required under Department rules. During enforcement actions, the retention period for all records shall be extended automatically unless the Department determines that the records are no longer required. b. The permittee shall hold at the facility or other location designated by this permit records of all monitoring infortation (including calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation) required by the permit, copies of all reports required by this permit, and records of all data used to complete the application for this permit. These materials shall be retained at least three years from the date of the sample, measurement, report, or application unless otherwise specified by Department rule. c. Records of monitoring information shall include: i. the date, exact place, and time of sampling or measurements; ii. the person responsible for performing the sampling or measurements; iii. the dates analyses were performed; iv. the person responsible for performing the analyses; V. the analytical techniques or methods used; vi. the results of such analyses. d. The permittee shall furnish to the Department, within the time requested in writing, any information which the Department requests to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit, or to determine compliance with this permit. e. If the permittee becomes aware that relevant facts were not submitted or were incorrect in the permit application or in any report to the Department, such facts or information shall be corrected promptly. [62-528.307(1) (nr)J 14. All applications, reports, or information required by the Department shall be certified as being true, accurate, and complete. 162-528.307(1)(n)J 15. Reports of compliance or noncompliance with, or any progress reports on, requirements contained in any compliance schedule of this permit shall be submitted no later than 14 days following each scheduled date. 162-528.307(1)(o)J 22 mm,w.dej;.stute f1.us PERMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS 1D: 102467 Cudjoe. Regional AWRF 16. Any pen -nit noncompliance constitutes a violation of the Safe Drinking Water Act and is grounds for enforcement action; for pen -nit tennination, revocation and reissuance, or modification; or for denial of a permit renewal application. [62-528.307(1)(p)] 17. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit. [62-528.307(1)(g)] 18. The permittee shall take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with this pen -nit. [62-528.307(1)(r)] 19. This permit may be modified, revoked and reissued, or tenninated for cause, as provided in 40 C.F.R. sections 144.39(a), 144.40(a), and 144.41 (1998). The filing of a request by the permittee for a permit modification, revocation or reissuance, or termination, or a notification of planned changes or anticipated noncompliance, does not stay any permit condition. [62-528.307(1)(s)] 20. The permittee shall retain all records of all monitoring information concerning the nature and composition of injected fluid until five years after completion of any plugging and abandonment procedures specified under rule 62-528.435, F.A.C. The permittee shall deliver the records to the Department office that issued the permit at the conclusion of the retention period unless the permittee elects to continue retention of the records. [62-528.307(1)(t)] 21. All reports and other submittals required to comply with this permit shall be signed by a person authorized under rules 62-528.340(1) or (2), F.A.C. All reports shall contain the certification required in rule 62-528.340(4), F.A.C. [62-528.307(1)(u)] 22. The pennittee shall notify the Department as soon as possible of any planned physical alterations or additions to the permitted facility. In addition, prior approval is required for activities described in rule 62-528.410(l)(h). [62-528.307(1)(v)] 23. The permittee shall give advance notice to the Department of any planned changes in the permitted facility or injection activity which may result in noncompliance with permit requirements. [62-528.307(1)(w)] 23 www.tlep.stale 1.us PF.RMITTEE: Thomas Walker, P.E., Deputy Executive Director Permit Number: 336267-001-UC/5W Florida Keys Aqueduct Authority WACS 1D: 102467 Cudjoe Regional AWRF 24. The permittee shall report any noncompliance which may endanger health or the environment including: a. Any monitoring or other information which indicates that any contaminant may cause an endangerment to an underground source of drinking water; or b. Any noncompliance with a pen -nit condition or malfunction of the injection system which may cause fluid migration into or between underground sources of drinking water. Any information shall be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A written submission shall also be provided within 5 days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause, the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and the steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance. (62-528.307(1) (x)J Issued this day of STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION +•': Joseph Haberfeld Aquifer Protection Program Administrator Division of Water Resource Management 24 www. del).sratc fl. its 2015 FDEP Underground Injection Control Program Sample Form (Cores/Cuttings/Formation Water) Well Name: ---- --- __ Well Typtjqircle one Class I Class V Exploratory Monitorin __ Date Collected: Date sent to FGS: Sam le type circle one Core Cuttings Formation Water Preservative used — if formation water sample — (circle one) Nitric n/a Other (describe) Datum and elevation: Sam le Interval: Elevation method (circle one) Survey LISGS Quadrangle Other (describe) Sample Interval Drilling Method (circle one) Reverse Air Mud Rota Sonic/Acoustic Other (describe) __ Well Coordinates ° " N / ° W Method circle one AGPS hand held DGPS (GPS surveyl „ Map Derived -_ FDEP Permit Number: Facility Name: - Permittee (owner): --- Facility Address: Drilling Company: Lead Driller: Project Geologist: Consulting Compaq ___ _ FACT SHEET FKAA Cudjoe Regional AWRF Permit # 0336267-001-UC/5W, WACS No.: 102467 August 12, 2015 1. General Information A. Statutory Basis for Requiring/issuing Permit The Department has permitting jurisdiction under Chapter 403, Florida Statutes (F.S.), and the rules adopted thereunder. The project is not exempt from permitting procedures. The Department has determined that a construction permit is required for the project. B. Name and Address of Applicant Mr. Thomas Walker, Deputy Executive Director Florida Keys Aqueduct Authority (FKAA) 1100 Kennedy Drive Key West, Florida, 33041-4021 Facility Cudjoe Regional Advanced Water Reclamation Facility (AWRF) 780 Blimp Road Cudjoe Key, Florida, 33042 C. Description of Applicant's Operation To construct, to Class I injection well standards, one (1) non -hazardous, Class V, Group 3, 12.75-inch outer diameter (OD) steel casing injection well (DIW-1) and one (1) dual zone monitor well (DZMW-1) system located at the Cudjoe Regional AWRF, 780 Blimp Road, Cudjoe Key, FL. The injection well is to be used for the disposal of water meeting the Advanced Wastewater Treatment (AWT) criteria from the Cudjoe Regional AWRF. Injection is into the Oldsmar Formation at approximately 2800 to 3200 feet below land surface (bls). The latitude longitude location of DIW-1 will be 24' 40' 36.66" N; -81' 30' 30.84" W. The capacity for DIW-1 shall be as described in the Preliminary Design Report and Influent Design Basis of the 2009 Wastewater Treatment Plant application: (gpm). • Annual Average: 0.94 Million gallons per day (MGD) • Maximum Monthly Average: 1.18 MGD • Peak Daily Average: 2.35 MGD • Peak Hourly Average: 3.09 MGD D. Permitting History of the Facility None for this Class V well. E. Documents Used in Permitting Decision FDEP Class V Construction Permit Application, Cudjoe Regional Advanced Water Reclamation Facility Deep Injection Well (DIW-1) and Dual Zone Monitoring Well DZMW-1), prepared for Florida Keys Aqueduct Authority by CH2M Hill, July 6, 2015. 2. Response to incompleteness items, CH2M Hill, July 27, 2015. Fact Sheet FKAA Cudjoe Regional AWRF 3. Engineering Report on Construction and Testing of Key West Deep Injection Well System for IW-1, November 2000. 4. Engineering Report on the Construction and Testing of (Key West) Deep Injection Well, IW-2, September 4, 2006. 5. Cudjoe Key Wastewater Treatment Plant Preliminary Design Report, part of the April 22, 2009 FKAA Wastewater Treatment Plant application, 2. Reasons Permit was Issued A. Area of Review (Rule 62-528.300(4), F.A.C.) Wells located within a 2.0 mile (10,560 ft) radius from the injection facility were located on a map and the well information listed. There were no wells identified that were not properly completed or plugged within the 2.0 mile area of review. See Document 1, and Rules 62-528.300(4) and 62-528.455(3)(b)l. and 2. F.A.C. B. Mechanical Integrity Demonstration (Rule 62-528.300 (6) (c), F.A.C. 1. To be demonstrated by a one hour pressure test of at least 1.50 X the maximum injection pressure on the cemented casing. The pressure test will be considered successful if the pressure change is not in excess of 5 percent (Document 1). 2. A temperature log and radioactive tracer log will be run on the completed injection well (Document 1). C. Confinement (Rule 62-528.405 (2), F.A.C.) The Arcadia, Suwannee, Avon Park and the upper Oldsmar formations provide confinement between the injection zone and the surfacial aquifer system. The confinement at this site is approximately 2580 feet thick and occurs between approximately 220 and 2800 feet below land surface (bls). Lithology is mostly limestone with minor amounts of dolomite. See Documents 1, 3 and 4. D. Underground Source of Drinking Water (Rule 62-528.405(1)(a), F.A.C.) The Underground Source of Drinking Water (USDW) is ground water consisting of water with a total dissolved solids (TDS) value less than 10,000 tnglL. On -site data from shallow wells and testing during the construction of the IW-1 and IW-2 deep injection wells at the RA Heyman W WTP facility in Key West demonstrate that there is likely to be no USDW at the injection well site. Further hydrogeologic testing will be conducted during well construction to confirm the presence or absence of a USDW at the Cudjoe AWRF. The well completion plan has been developed for either possibility. See Document 1. Page 2 of 5 Fact Sheet FKAA Cudjoe Regional AWRF E. Injection Zone (Rule 62-528.405 (3), F.A.C.) Based on available data from the nearest deep injection wells at RA Heyman Facility, the injection zone is between 2800' and 3200 feet bls. These data indicate that the injection zone is sufficiently permeable and saline for injection. This targeted interval is within the Oldsmar Formation of Eocene Age where the lithology consists of well - indurated, variable vuggy and fractured dolostones and poorly indurated limestones. See Documents 1, 3, and 4 for details. F. Well Construction — The Dual Zone Monitor Well shall be constructed first to identify the presence or absence of a USDW. DIW-1 Alternative A —No USDW 44" OD steel casing set to 30 feet bls, thickness is 0.375 inches. 34" OD steel casing set to 275 feet bls, thickness is 0.375 inches. 24" OD steel casing set to 1,100 feet bls, thickness is 0.375 inches. 12.75" OD steel casing set to 2,800 feet bls, thickness is 0.50 inches. All casings will be cemented to land surface. The open -hole portion of the well extends from 2800 to 3200 feet bls. DIW-1 Alternative B — USDW Present 54" OD steel casing set to 30 feet bls, thickness is 0.375 inches 44" OD steel casing set to 275 feet bls, thickness is 0.375 inches. 34" OD steel casing set to 1,100 feet bls, thickness is 0.375 inches. 24" OD steel casing set to 1700 feet bls, thickness is 0.375 inches. 12.75" OD steel casing set to 2,800 feet bls, thickness is 0.50 inches. All casings will be cemented to land surface. The open -hole portion of the well extends from 2800 to 3200 feet bls. See Document 1 for details. G. Monitor Plan (Rule 62-528.425 (1), F.A.C.) An on -site dual zone monitor well monitor well will monitor aquifers overlying the injection interval. The approximate monitor depths for the dual zone well are 700-750 feet bls (upper zone) and 1250-1300 feet bls (lower zone) if no USDW is present. If a USDW is present the approximate monitor depths will be 1450-1500 and 1650-1700 feet bls. The two zones are within the Floridan aquifer. During the operational testing phase of the permit, required injection and monitor well monitoring parameters include continuous injection volume, flow rate and pressure, and monthly monitoring of the effluent stream of the AWRF for the parameters listed in the specific conditions of the permit. Monitor well water quality sampling parameters listed in the permit will be collected. Quarterly specific injectivity and pressure fall off testing is also required. See Document 1. Page 3 of 5 Fact Sheet FKAA Cudjoe Regional AWRF H. Financial Responsibility (Rule 62-528.455 (3) (b) 8. F.A.C.) Financial responsibility for this facility was demonstrated by local government guarantee. A cost estimate for plugging and abandoning the entire injection well system for this facility was submitted as part of the application. See Document l for details. Emergency Discharge (Rule 62-528.455 (1) (d), F.A.C.) In case of emergency or planned maintenance, wastewater will be directed to the four permitted shallow Class V, Group 3 injection wells at the AWRF. Use of the shallow wells will be in accordance with the AWRF permit. See Documents 1 and 2. Agency Action A draft permit will be issued as per Rule 62-528.310, F.A.C. Page 4 of 5 Fact Sheet FKAA Cudjoe Regional AWRF 4. Public Rights (Rules 62-528.310, .315, and .326, F.A.C.) Any interested person may submit written comments on the draft permit, and may request a public meeting, within 30 days of the public notice. A public meeting will be held on , 2015, at a.m./p.m. at for the purpose of receiving oral and written comments concerning this project. Written comments shall be submitted to the Department of Environmental Protection, Aquifer Protection Program, 2600 Blair Stone Road, MS 3530, Tallahassee, Florida 32399-2400, which is the office processing this permit application. All comments received within the 30-day period and through the public meeting date, will be considered in formulation of the Department's final decision regarding permit issuance. After the conclusion of the public comment period and public meeting described above the Department may revise the conditions of the permit based on such public comment. Then the applicant will publish Notice of the Proposed Agency Action. A person whose substantial interests are affected by the Department's proposed permitting decision may petition for an administrative proceeding (hearing). Accordingly, the Department's final action may be different from the position taken by it in the Notice of the Proposed Agency Action. The petition must conform to the requirements specified in the Notice and be filed (received) within 14 days of publication of the Notice in the Office of General Counsel, M.S. 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399- 3000. The failure of any person to file a Petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative (hearing) under Section 120.569 and Section 120.57 of the Florida Statutes, or to intervene in this proceeding and participate as a party to it. Any subsequent intervention (in a proceeding initiated by another party) will only be at the discretion of the presiding officer upon filing of a motion in compliance with Rule 28-106.205 of the Florida Administrative Code. The application and draft permit are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at Department of Environmental Protection, Aquifer Protection Program, 2600 Blair Stone Road, Mail Station 3530, Tallahassee, Florida, 32399-2400, and Department of Environmental Protection, South District Office, 2295 Victoria Ave., Suite 364, Fort Myers, Florida 33901. 5. A enc .Contact Douglas Thornton Engineering Specialist III Florida Department of Environmental Protection Aquifer Protection Program 2600 Blair Stone Road I Mail Station 3530 Tallahassee I Florida 1 32399-2400 Phone: 850.245.8666 Page 5 of 5