STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHWEST ESCAMBIA IMPROVEMENT ) ASSOCIATION, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 78-1781

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION and ) GULFSIDE INVESTMENTS, LTD., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice1 the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on January 26, 1979, in Pensacola, Florida.

APPEARANCES

For Petitioner: P. Michael Patterson, Esquire

26 East Garden Street Pensacola, Florida 32501

For Respondents: H. Ray Allen, Esquire

Assistant General Counsel State of Florida Department

of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

(Counsel for W. Christopher Hart, Esquire Gulfside Clark, Partington, Hart & Hart Investments, Post Office Drawer 12585

Ltd.) Pensacola, Florida 32573

On July 5, 1978, Gulfside Investments, Ltd. ("Gulfside") made application to the State of Florida, Department of Environmental Regulation ("DER") for the issuance of a permit to operate a wastewater treatment plant on property owned by Gulfside on Perdido Key in Escambia County, Florida. DER reviewed the application, and on August 29, 1978, issued a Notice of Intent to issue the permit requested by Gulfside. Thereafter, on or about September 15, 1978, the Southwest Escambia Improvement Association ("Petitioner") filed a Petition for Formal Hearing with DER, contending that they are a "substantially affected party" within the intent and meaning of Section 120.57, Florida Statutes, aid Rule 28-5.15, Florida Administrative Code, and that the issuance of the requested permit would violate Article II, Section 7 of the Florida Constitution

and Sections 380.021, 403.021 and 163.315, Florida Statutes, Presidential Executive Order 11988 and Public Law 92-500.

By Order dated October 26, 1978, Motion(s) to Dismiss filed by DER and Gulfside were granted, and Petitioner was allowed a period of twenty (20) days in which to file an Amended Petition. Petitioner's Amended Petition for Formal Hearing was filed on or about November 27, 1978, and, by Order dated December 7, 1978, Gulfside's Motion to Dismiss [the] Amended Petition was denied. By Order dated December 13, 1978, DER's Motion to Dismiss [the] Amended Petition was denied.

Final hearing in this cause was scheduled for January 26, 1979, by Notice dated December 29, 1978.

At the final hearing, Petitioner's Motion for Substitution of Parties was granted, to reflect a change of Petitioner's name to Southwest Escambia Improvement Association, Inc.

At the final hearing, Petitioner called Silvia Anderson, William K. Clark, John Zoltec, Jr., Duane T. Raynor, Michael W. Ziegler and Carl Helton as its witnesses. Petitioner offered Petitioner's Exhibits No. 1 and 2 for inclusion in the record. Petitioner's Exhibit No. 1 was allowed into evidence, but the exhibit marked "Petitioner's Exhibit No. 2" for identification was excluded from the record on the motion of DER and Gulfside. DER called Harold Huff and Philip Dougherty as its witnesses. In addition, DER offered DER Exhibit No. 1, which was received into evidence. Gulfside called Harold Pridgen, Joe Edmisten, Charles H. Peterson, Jr., Billie G. Tennant and Silvia Anderson. Gulfside offered Respondent's Exhibit No. 1, which was received into evidence.

FINDINGS OF FACT

1. On July 5, 1978, Gulfside applied to DER for the issuance of a permit to operate a wastewater treatment plant on property owned by it on Perdido Key in Escambia County, Florida. The proposed plant is designed to serve a condominium complex consisting of 64 units, with the expectation that 350 gallons of water per day per unit will be discharged into the system, thus requiring a minimum plant capacity of 22,400 gallons per day. The plant described in the application has a capacity to handle 24,000 gallons per day.

   
   

2. The proposed plant will use an extended aeration process whereby effluent is routed from the individual units through a filter within the proposed plant and then discharged into two percolation ponds associated with the facility. The plant is designed to remove 90 percent of B.O.D. and suspended solids. In addition, the plant is designed with duplex blowers and pumps to insure continued operation in the event of failure of one of the units. An emergency generator is included to provide back-up power for the entire plant, including blowers, pumps and chlorinators.

   
   

3. Perdido Key, where the proposed plant is to be located, is a barrier island located off the coast of Escambia County, Florida, near the Florida- Alabama border. There is substantial residential development presently on Perdido Key, but no central sewer system exists to service the area. Currently, only septic tanks and package sewer plants are available for waste treatment purposes on the island. Adjacent to Perdido Key is Old River, which has been classified a Class III water.

4. Soils on Perdido Key are primarily sandy, and as a result, have a high percolation rate. The problem of high percolation rate through the soils of Perdido Key was adequately addressed by Gulfside in the design of percolation ponds associated with the proposed plant. The two percolation ponds are designed to be located at a minimum of four feet elevation above maximum high ground water level. In fact, during DER's review of this application, Gulfside agreed to raise the bottom elevation of these percolation ponds in response to a concern regarding their initial location in close proximity to the water table. The problem of the expected fast percolation rate was addressed in designing the size of these percolation ponds, and also taken into consideration in designing the method of distributing effluent across the bottom surface of the ponds.

   With regard to the latter consideration, initial design of the project contemplated a single point for discharge of effluent into each percolation pond. However, Gulfside has agreed to redesign these percolation ponds in such a fashion to discharge effluent more evenly throughout the bottom area of the ponds too combat the problem of the excess percolation rate.

   
   

5. The proposed percolation ponds are designed with surface areas in excess of 15,000 square feet. The ponds were initially designed utilizing a six-to-one slope, which would have given twice the bottom surface area of the three-to-one slope eventually required by DER in the process of reviewing the application. The three-to-one slope shown in the plans and specifications results in a bottom surface area of 2,974 square feet. However, the engineering report submitted with the application indicates that percolation ponds will have a bottom surface area of 4,480 square feet. From the evidence, it would appear appropriate for the ponds to have a minimum bottom surface area of 4,480 square feet. From the evidence, this problem can easily be rectified by raising the bottom elevation of the percolation ponds by approximately one foot. This requirement should be imposed as a condition to the granting of the requested permit.

   
   

6. The proposed plant, although designed to remove 90 percent of B.O.D. and suspended solids, is not designed to remove nutrients from the effluent. However, the evidence establishes that these nutrients. Will be removed by a combination of filtration through soil substrata and biological action in the percolation ponds. Gulfside has also agreed to install a spartina marsh waterward of the percolation ponds to act as a final nutrient scrubber. The system design is reasonably calculated to assure removal of harmful quantities of nutrients, and no competent evidence was adduced to indicate that the system design was not sufficient for this purpose. Thus, although the treatment plant is proposed to be located only 50 feet from Old River, there is no indication that it will, in fact, result in any adverse impacts to that water body. In addition, DER has no rules or guidelines regulating distances from which package sewer plants, such as that proposed in this application, should be located from bodies of water such as Old River.

   
   

7. It should be noted here that the application which is the subject of this proceeding is solely for the purpose of construction of the proposed facility. DER has imposed a permit condition requiring an initial four months operation for appropriate testing to determine compliance with the rules and regulations promulgated by DER before issuance of an operation permit. If testing demonstrates noncompliance with DER's rules and regulations, the operating permit for the facility can be denied.

   
   

8. Testimony adduced at the hearing established that members of Petitioner, Southest Escambia Improvement Association, Inc., own property in the

   vicinity of the proposed facility, and that they utilize waters surrounding Perdido Key for sailing, swimming, crabbing and other recreational uses.

   
   

9. Both Petitioner and Gulfside have submitted Proposed Findings of Fact. Petitioner's Proposed Findings of Fact numbered 1, 2, 3, 4 and 8 have been substantially adopted in this Recommended Order. Gulfside's Proposed Findings of Fact numbered 1 through 5 have also been substantially adopted in this Recommended Order. To the extent that Proposed Findings of Fact submitted by either Petitioner or Gulfside are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues under consideration in this cause, or as not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57, Florida Statutes.

    
    

11. Petitioner has standing as a party whose substantial interests will be affected by proposed agency action in this proceeding. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978); United States v. S.C.R.A.P., 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

    
    

12. Gulfside has provided DER with "reasonable assurances" that the proposed project will not violate state water quality standards, and has otherwise complied with the requirements of Section 403.087, Florida Statutes, Chapter 17-3, Florida Administrative Code, and Chapter 17-4, Florida Administrative Code, so that the requested permit should issue, subject to a condition that the bottom surface area of the percolation ponds be redesigned to at least the size represented in the engineering report submitted to DER with the application.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Environmental Regulation, determining that the requested permit be issued, subject to the conditions set forth above and those conditions contained in the initial Notice of Intent to Issue Permit.

RECOMMENDED this 22nd day of March, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

P. Michael Patterson, Esquire

26 East Garden Street Pensacola, Florida 32501

H. Ray Allen, Esquire Assistant General Counsel State of Florida Department

of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

W. Christopher Hart, Esquire Clark, Partington, Hart & hart Post Office Drawer 12585 Pensacola, Florida 32573

Docket for Case No: 78-001781

Orders for Case No: 78-001781