Title: Groundwater Discharge Permitting in Florida
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Permanent Link: http://ufdc.ufl.edu/WL00004302/00001
 Material Information
Title: Groundwater Discharge Permitting in Florida
Physical Description: Book
Language: English
Publisher: Chuck Aller, John Garlanger, Jake Varn
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Groundwater Discharge Permitting in Florida (JDV Box 89)
General Note: Box 19, Folder 10 ( Dept. of Regulation - Groundwater Discharge Permitting - 1990 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004302
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text








GROUNDWATER DISCHARGE PERMITTING


IN FLORIDA

Chuck Aller
Florida Department of Environmental Regulation
Bureau of Groundwater Protection
2600 Blair Stone Road
Tallahassee, FL 32399
(904) 488-3601


John Garlanger
Ardaman and Associates
8008 South Orange Avenue
Orlando, FL 32809
(305) 855-3860


Jake Varn
Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.
215 South Monroe Street
Suite 410
Post Office Drawer 910
Tallahassee, FL 32302
(904) 224-1585









GROUNDWATER DISCHARGE PERMITTING
IN FLORIDA

Chuck Aller, John Garlanger, Jake Varn


I. BACKGROUND

Groundwater is certainly one of the most important natural
resources of the State of Florida. In Florida more than 90% of
the public drinking water is groundwater. Waterbearing
formations are commonly referred to as aquifers and are found
throughout the State. Aquifers are susceptible to contamination
from a variety of human activities, including improperly
constructed landfills and leaking underground storage tanks. The
nature and extent of contamination is heavily influenced by the
hydrogeology at the contamination site. Once an aquifer is
contaminated, a considerable amount of time (usually measured in
tens of years) and expense will be required to return the aquifer
to its pre-contamination condition.

Prior to 1979 groundwater was essentially unregulated and
unprotected by DER. On March 1, 1979, DER implemented its first
serious groundwater provisions of Chapters 17-3 and 17-4, Florida
Administrative Code. The first provisions divided groundwater
into two classifications and set groundwater quality standards
for these classifications. These rules introduced the concept of
"zones of discharge." Except for those substances and
concentrations that constitute a serious danger to the public
health, safety or welfare (commonly referred to as the "free
froms"), water quality standards must be met at the boundary of
the zone of discharge. The groundwater zone of discharge is
somewhat analogous to the surface water mixing zone.

In April, 1982, DER took another major step when it
promulgated the first comprehensive regulations governing
underground injection wells. These regulations appeared in
Chapter 17-28, Florida Administrative Code. Later in 1982 DER
promulgated comprehensive revisions to Chapter 17-3 and 17-4,
Florida Administrative Code, and these rules became effective on
January 1, 1983. The 1983 revisions refined and considerably
expanded the scope of DER's earlier regulations. In January,
1983, DER promulgated Rule 17-30.18, which adopted 40 C.F.R. $
264, subpart (f), which regulates the discharge of hazardous
wastes to groundwater. Rule 17-30.18 was recently transferred
and now appears as Rule 17-730.180, Florida Administrative Code.

In late 1986 and early 1987 DER proposed major revisions to
Chapter 17-3 and 17-4, Florida Administrative Code. These major
revisions were commonly referred to as the "G-I rule" and, when
effective, would have provided more stringent regulations on
groundwater discharges. The proposed "G-I rule" was subject to a
challenge under section 120.57(1), Florida Statutes, and the
Hearing Officer held that proposed rules 17-3.021, 17-3.403,
17-3.404 and 17-4.245, Florida Administrative Code, constituted





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14 FK/^ 2-722- 1t l, Iff


invalid exercises of delegated legislative authority (in other
words, these rules were held to be invalid). The Hearing
Officer's order was appealed and, as of September 30, 1988, the
District Court of Appeal has not rendered its decision.

In any event the foregoing demonstrates the significant
attention that has been given to protecting Florida's
groundwater. One cannot disagree that groundwater is critical to
Florida's future and it should be expected that the regulations
to protect groundwater will only become more complex and
stringent.


II. REGULATORY BODIES IN FLORIDA

In dealing with groundwater discharges you need to check at
three different levels. At the state level you need to be
concerned with the Florida Department of Environmental Regulation
(DER). DER through Chapters 403 and 376, Florida Statutes, has
the broadest authority over groundwater discharges and
contamination. DER has adopted a variety of rules governing
groundwater discharges and contamination:

1. Chapter 17-3 Water Quality Criteria Ground Water
2. Chapter 17-4 Permits
3. Chapter 17-6 Liquid Waste Disposal
4. Chapter 17-28 Underground Injection
5. Chapter 17-61 and 17-70 Underground Storage Tanks
6. Chapter 17-25 Stormwater
7. Chapter 17-730 Hazardous Waste
8. Chapters 17-524, 17-532, 17-550, 17-555 and 17-560 -
Water Well Construction and Potable Water Systems
9. Chapter 17-701 Solid Waste Facilities, Resource
Recovery, Domestic Sludge

The five water management districts operating under Chapter
373, Florida Statutes, are also involved in a number of
groundwater issues. Through the water management district's
consumptive use permitting programs, groundwater is protected
from overuse and salt water intrusion. The districts also serve
on DER's Technical Advisory Committee in the injection well
permitting process.

Provisions are made in Chapter 403, Florida Statutes, for
local governments to have local programs that may adopt more
stringent regulations than DER. The following local governments
have local programs that have been approved by DER: (1) Alachua,
(2) Brevard, (3) Broward, (4) Dade, (5) Duval, (6) Hillsborough,
(7) Lake, (8) Manatee, (9) Orange, (10) Palm Beach, (11)
Pinellas, (12) Sarasota, (13) Seminole, and (14) Volusia. The
nature and extent of each local program varies, so you need to
check with each local program. Broward, Dade and Palm Beach
Counties have adopted well field protection ordinances.
Broward and Dade Counties have adopted underground storage tank
ordinances that have been approved by DER.










III. GROUNDWATER QUALITY STANDARDS


A. Primary Drinking Water Standards Rule 17-550.310


Contaminant
1. Inorganics
a. Arsenic
b. Barium
c. Cadium
d. Chromium
e. Fluoride
f. Lead
g. Mercury
h. Nitrate (as N)
i. Selenium
j. Silver
k. Sodium


2. Organics

a. Chlorinated hydrocarbons
(1) Endrin
(2) Lindane
(3) Methoxychlor


b. Chlorophenoxys
(1) 2,4 D
(2) 2,4,5 TP, Silvex

c. Total trihalomethanes

3. Turbidity


4. Microbiological


a. Arithmetic mean of all
monthly samples

b. Less than 20 samples
per month

c. More than 20 samples
per month, 5% of the
samples


Max. Containment Level
mg/1 (unless indicated
0.05 otherwise)
1.0
0.010
0.05
4.0
0.05
0.002
10.0
0.01
0.05
160.0


0.0002
0.004
0.1



0.1
0.01

0.10

5 units


1/100 ml


4/100 ml



4/100 ml


5. Radionuclides


a. Combined Ra-226 and
Ra-228

b. Gross alpha, including
Ra-226


5 pCi/l


15 pCi/1










c. Beta particle and photon
radioactivity

d. Tritium

e. Strontium 90


4 millirem/year

20,000 pCi/l

8 pCi/1


6. Volatile Organics


Trichloroethylene
Tetrachloroethylene
Carbon Tetrachloride
Vinyl Chloride
1,1,1 Trichloroethane
1,2 Dichloroethane
Benzene
Ethylene Dibromide


3 ug/1
3 ug/l
3 ug/1
1 ug/l
200 ug/l
3 ug/l
1 ug/l
0.02 ug/l


B. Secondary Drinking Water Standards


Contaminant


MCL mg/l


1. Chloride
2. Color
3. Copper
4. Corrosivity

5. Fluoride
6. Foaming agents
7. Iron
8. Manganese
9. Odor

11. Sulfate
12. Total Dissolved Solids
13. Zinc


250
15 color units
1
neither corrosive
nor scale forming
2.0
0.5
0.3
0.05
3 units

250
500
5


C. Minimum Criteria For Groundwater Rule 17-3.402

This rule applies to all groundwater at all times and is
generally referred to as the "free froms" requirement. This rule
prohibits any discharge, which, alone or in combination with
other substances: (1) are harmful to plants, animals or organisms
native to the soil, (2) are carcinogenic, mutagenic, teratogenic
or toxic to human beings, (3) are acutely toxic to indigenous
species of significance to the aquatic community within affected
surface waters, (4) pose a serious danger to the public health,
safety or welfare; (5) create or constitute a nuisance or (6)
impair the reasonable and beneficial use of adjacent waters.

To give meaning to the "free froms" rule DER prepared an
interoffice Memorandum, dated October 2, 1986, from James E.
McNeal and Randy Merchant, which provided a limited listing of


___ 1-11 --- ~a~b--cjre
I '~ I TI I I










minimum criteria guidance concentrations of synthetic organic
and inorganics that warrant further inquiry. A copy of that
memorandum is attached as Appendix A.

IV. GROUNDWATER CLASSIFICATIONS Rule 17-3.403

This rule establishes four classifications for
groundwater. These classifications are based on total dissolved
solids (TDS) concentrations and hydrogeological locations. The
classifications are arranged in order of the degree of protection
required, with Class G-I groundwater having generally the most
stringent water quality criteria and Class G-IV the least. The
rule also describes the process, including required notices,
public hearings and findings, necessary for reclassification.

The classifications are as follows:

1. Class G-I: potable water use, groundwater in single
sources aquifers which has a TDS of less than 3,000
mg/l.

2. Class G-II: potable water use, groundwater in aquifers
which has a TDS content of less than 10,000 mg/l, unless
otherwise described by the ERC.

3. Class G-III: non-potable water use, groundwater in
unconfined aquifers which has a TDS content of 10,000
mg/l or greater, or which has TDS of 3,000 to 10,000
mg/l and either has been reclassified by the ERC as
having no reasonable potential as a future source of
drinking water or has been designated by the Department
as an exempted aquifer pursuant to Rule 17-28.130(3).

4. Class G-IV: non-potable water use, groundwater in
confined aquifers which has a TDS content of 10,000 mg/l
or greater.

IV. GROUNDWATER PERMITTING REQUIREMENTS

A. Generally Rule 17-28.700(1) and (2)

1. Unless exempt, no installation shall discharge into
groundwater, either directly or indirectly, any
contaminant that causes a violation in the water
quality standards and criteria for the receiving
groundwater, except within a zone of discharge
established by permit or rule.

2. Whenever possible the Department incorporates
groundwater discharge considerations into other
appropriate Department permits and does not require
a separate permit for groundwater discharges. The
notice of proposed agency action shall contain
notice that groundwater considerations are being
incorporated into such other permits.


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3. No zones of discharges are allowed for discharges
through natural or man-made conduits (wells and
sinkholes) that allow direct contact with Class G-I
and Class G-II groundwater. There are exemptions
for certain specific recharge wells. This no zone
of discharge limitation also applies to discharges
that may cause an imminent hazard.

4. Installations which do not need a zone of discharge
in order to discharge to groundwater:

a. Installations discharging to Class G-III
groundwater, as long as discharge does not
threaten to impair designated use of adjacent
waters and as long as discharges comply with
Chapter 17-28, Florida Administrative Code.

b. Installations discharging to Class G-IV
groundwater as long as discharges comply with
Chapter 17-28, Florida Administrative Code.

B. Zones of Discharge

1. Generally, these are no zones of discharge allowed
for discharges to Class G-I. There are a limited
number of exceptions, including the following:

a. Domestic wastewater and stormwater sites
authorized by the Department shall have zones
of discharge extending no more than 100 feet
from the site boundary or to the
installation's property boundary, whichever is
less. However, a smaller zone of discharge
may be established if it is necessary to
protect the designated use of adjacent waters
outside the zone of discharge.

b. Other discharge sites may be granted zones of
discharge of the same size as the domestic
wastewater and stormwater sites provided the
discharges are as clean as the domestic waste
(i.e., the discharges meet the chemical,
physical and microbiological standards of Rule
17-6.080(3)(a), Florida Administrative Code).

c. Installations authorized to discharge to
groundwater at the time of reclassification to
Class G-I shall meet the same requirements as
existing installations discharging to Class
G-II groundwater.

2. Generally, with respect to installations
discharging to Class G-II and Class G-III
groundwater, the boundary of the zone of discharge
shall be 100 feet from the site boundary or to the


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installation's property boundary, whichever is
less. A smaller zone of discharge may be
established if necessary to protect the designated
use of contiguous waters.

a. Existing installations shall have the zone of
discharge specified in the permit or, if no
zone of discharge is defined in the permit,
extending to the owner's property line.


b. New installations may establish a larger zone
of discharge upon meeting the requirements of
Rule 17-28.700(4)(a)(1), provided the zone of
discharge does not extend beyond the permit
applicant's property boundary.

3. A zone of discharge beyond the property line may be
obtained by the owner of an existing installation
provided the following conditions are met:

a. opportunity for hearing;

b. written notice to property owners with
property underlain by proposed zone of
discharge;

c. public notice in Florida Administrative Weekly
and in a newspaper of general circulation;

d. affirmative demonstration by owner of existing
installation that:

(1) discharge will not significantly impair
any of the designated uses of the
receiving groundwater or surface water;
and

(2) discharge will not in the foreseeable
future result in violation of applicable
groundwater standards in a currently
utilized source of drinking water outside
the zone of discharge; and

(3) discharge will not prevent persons within
the proposed zone of discharge from
enjoying the reasonable and beneficial
use of this property.

If the owner secures an extended zone of discharge,
the owner must record the application for the
extended zone of discharge in the property records
of affected parcels.


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C. Monitoring


4. Generally, all installations (new and existing)
must have approved monitoring programs. When the
monitoring requirement was promulgated, existing
operations were given a compliance schedule. As of
March 1984, all existing installations were to have
submitted monitoring plan applications.

5. The contents and approval of the monitoring plans
are done on a case by case basis. However, the
rule provides a long list of factors to be
considered. See Rule 17-28.700(6)(d).
6. Certain domestic sewage treatment installations;
stormwater facilities; agricultural fields, ditches
and canals; and livestock waste lagoons are exempt
from the groundwater monitoring requirements

D.

As indicated earlier revisions were proposed to the
groundwater standards and permitting requirements. Some
of the proposed revisions were held to be invalid by a
DOAH Hearing Officer. An appeal of the Hearing
Officer's order is now pending. If the Hearing
Officer's order is overturned and the proposed revisions
are upheld, major and significant changes will become
effective. See Appendix B, which is DER's "G-I Rule"
Fact Sheet, for an explanation of what was proposed.


V. ENFORCEMENT

A. General

1. When the Department believes that the groundwater
has become contaminated or an event occurs which
could contaminate the groundwater, the Department
usually issues a Warning Notice or a Notice of
Violation. In either event the Department seeks to
have the owner/operator of the facility investigate
to determine if the groundwater has become
contaminated and, if there is contamination, have
the contamination remediated. The Department has
spelled out the process that it wants the owner to
follow and this process is set out in the "Model
Corrective Actions for Groundwater Contamination
Cases". Copies of these actions can be obtained
through the DER Office of General Counsel in
Tallahassee. The latest version was prepared in
January, 1988. The steps identified in the model
orders are:










a. Preliminary Contamination Assessment Plan
(PCAP)
b. Quality Assurance Project Plan (QAPP)
c. Preliminary Contamination Assessment Report
(PCAR)
d. Contamination Assessment Plan (CAP)
e. Contamination Assessment Report (CAR)
f. Feasibility Study Plan (FSP)
g. Feasibility Study Report (FSR)
h. Remedial Action Plan (RAP)

B. Petroleum Contamination Sites _i_ ___ i

1. Initial Remediation Action -MMi I Me-

a. Free product recovery may commence immediately

(1) where imminent hazard exists.

(2) DER must be orally notified within 24
hours of commencement of free product
recovery, with written confirmation
following within 3 days.

(3) petroleum-saturated soils may not be used
as replacement soil.

(4) notice to DER of initiation of soil
excavation.

(5) during initial cleanup quarterly status
letters shall be provided to the Bureau
of Restoration.

2. Quality Assurance Project Plan II -I

a. A QAPP must be submitted to and approved by
DER prior to any sampling or analysis.

b. QAPP must be prepared in accordance with "DER
Guidelines for Preparing Quality Assurance
Plans DER-QA-001/85."

3. Contamination Assessment (CA) I IM

a. If DER determines that site rehabilitation is
necessary, it shall issue a Site
Rehabilitation Initiation Order. This order
constitutes DER authorization for cleanup
activities.

b. Within 30 days of receipt of Order, CA is to
be commenced.










c. The objectives of the CA are listed in Rule


d. The CA can be concluded and the Contamination
Assessment Report (CAR) submitted with "no
further action" proposal if no free product is
present and:
(1) Site is located over G-II groundwater and
total VOA concentration present in
groundwater is less than 50 ug/l and:

(a) benzene concentration is 1 ug/l or
less; or

(b) no potable wells are located within
1/4 mile downgradient of site; or

(c) all drinking water sources located
within 1/4 mile downgradient are
connected to public water system,
the wellhead for which is located
greater than 1/4 mile down-gradient
of site.

(2) The site is located over G-III
groundwater and total VOA concentration
present in groundwater is less than 200
ug/1.

e. The CA can be concluded and the CAR submitted
with a "monitoring-only" plan if free product
is not present and:

(1) Site is located over G-II groundwater,
total VOA concentration in groundwater is
less than 50 ug/l and potable wells are
located within 1/4 mile downgradient; or

(2) Site is located over G-III groundwater,
and the total VOA in groundwater is
greater than 200 ug/l but less than 1,000
ug/l.

f. The "monitoring-only" plan must continue for
at least one year.

g. For sites not qualifying for "no further
action" or "monitoring-only" alternatives,
constituents for sampling and analysis are
listed and categorized as follows:

(1) Gasoline analytical group (motor
gasoline, aviation gasoline, gasohol):
(1) 1,2 Dichloroethane EPA-601; (2)
Benzene EPA-602; (3) Toluene EPA-602;
(4) Total Xylenes EPA-602; (5) Ethyl-


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benzene EPA-602; (6) Total VOA EPA-
602; (7) Volatile Organic Halocarbons -
EPA-601; (8) 1-2-Dibromoethane (EDB) -
EPA-504.1; (9) Methy Tert-Butyl Ether
(MTBE) EPA-602; and (10) Lead EPA-
304.

(2) Kerosene analytical group (Kerosene,
diesel, JP-4 jet fuel, jet A fuel): same
method as for gasoline groups for (1)
benzene, (2) toluene, (3) total xylenes,
(4) ethylbenzene, (5) EDB, (6) MTBE, (7)
Total VOA, (8) Volatile Organic
Halocarbons and (9) Lead. For
polynuclear aromatic hydrocarbons (PAH) -
EPA-625.

h. Risk assessments may be undertaken if one
wishes to develop site specific Site
Rehabilitation Levels (SRLs). Risk
assessments shall include: (1) exposure
assessment; (2) toxicity assessment; and (3)
risk characterization.

i. Site Rehabilitation Levels (SRLs) are those
contaminant concentrations which must be
achieved in order for remedial action to be
deemed complete. SRLs are to be based upon:

(1) present and future uses of adjacent
ground and surface water,

(2) technical feasibility of achieving water
quality standards.

(3) individual site characteristics, and

(4) results of the risk assessments.

4. Contamination Assessment Report (CAR) -


a. The CAR summarizes all tasks in the CA,
summarizes the conclusions of the CA and, if
undertaken, summarizes the conclusions drawn
from the risk assessment.

5. Remedial Action Plan (RAP) I MMMMMMRI

a. The objective of the RAP is to reflect the
plan for achieving cleanup to applicable water
quality standards or site specific SRLs.

b. The RAP is to be submitted within 6 months of
initiation of the CA.


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c. The RAP shall include:

(1) the CAR;

(2) the rationale for the proposed remedial
action;

(3) design details;

(4) operational details;

(5) constituents to be monitored;

(6) designation of monitor wells and proposed
methodology to verify accomplishment of
RAP goals; and

(7) details for cleanup or disposal of
contaminated soils.

6. Remedial Action _

a. The remedial action shall be initiated within
30 days of the issuance of the Order approving
the RAP.

b. Quarterly status reports are to be provided.

c. Groundwater treatment and free product
delivery shall be complete when free product
has not been identified for one year and when
the following applicable conditions are met:

(1) for Class G-I and Class G-II,
contaminants reduced to Chapter 17-3
criteria or to ambient levels.

d. Remedial action may be discontinued after a
minimum of one year, when contaminant
concentrations have leveled off. "Leveling
off" is defined by formula.

7. Site Rehabilitation Completion _-Ig

a. A Site Rehabilitation Completion Report (SRCR)
is to be prepared and submitted to DER when
monitoring is completed. The SRCR shall
contain a demonstration that the site cleanup
objectives have been achieved.

b. Once the SRCR is approved, DER shall issue a
Site Rehabilitation Completion Order.


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C. Developments in Case Law


1. Sunshine Jr. Stores, Inc. v. DER, 14 FLW 640 (Fla
1st DCA 1989). The court concluded that, although
Sunshine Jr. Store owned property with an
underground storage tank which had discharged
pollutants to groundwater, it was not liable for
the resulting contamination. This conclusion was
based upon Sunshine Jr. Store's showing that no
discharge occurred during the period of its
ownership of the property.


VII. Other Relevant Case Law

1. Huelsman v. WAC of Okaloosa County, 11 FALR 3777
(DER 5/29/89). Compliance with the design standards for
landfills set forth in Chapter 17-701 creates only a
rebuttable presumption of reasonable assurances.

2. Commercial Coating Corp. v. DER, 14 FLW 1559 (Fla.
3d DCA 1989). DER may not restrict the definition of
"petroleum product" for the purpose of reimbursement
under the EDI program.




Permit

Permit


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