Judges: SHARYN L. SMITH
Agency: Department of Environmental Protection
Latest Update: Apr. 30, 1980
Summary: Grant sewer facility permit to county on the condition effluent is continually monitored.
79-2193.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RAYMOND A. JACKSON, et al., )
)
Petitioners, )
)
vs. ) CASE NO. 79-2193
) INDIAN RIVER COUNTY BOARD OF ) COUNTY COMMISSIONERS, and ) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
This matter came on for hearing in Vero Beach, Florida, before the Division of Administrative Hearings and its duly designated Hearing Officer, Sharyn L. Smith, on January 31, 1980. The parties were represented by counsel:
APPEARANCES
For Petitioner: Sherman N. Smith, Jr., Esquire
Post Office Box 1030
Vero Beach, Florida 32960
For Respondent: George C. Collins, Jr., Esquire Indian River Post Office Box 3686
County Vero Beach, Florida 32960
For Respondent: Segundo J. Fernandez, Esquire Department of Twin Towers Office Building Environmental 2600 Blair Stone Road Regulation Tallahassee, Florida 32301
The Petitioner Raymond A. Jackson, et al., has objected to the Department of Environmental Regulation Notice of Intent to issue a construction permit to Indian River County for the construction of a sewage treatment plant.
Petitioner opposes the issuance of the permit on the grounds that the site is not suited for construction of a sewage treatment plant due to poorly drained soils, a low lying site, the existence of insufficient drainage, standing groundwater, the possible discharge of effluent into surfacewaters and the possible spread of viruses through groundwater to adjoining areas. It is further alleged that the Department of Environmental Regulation in evaluating this project has failed to comply with Section 403.088, Florida Statutes, which requires that operation permits he granted only when degradation of standards is in the public interest.
Proposed Recommended Orders have been submitted by the parties and have been considered by the Hearing Officer. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not
supported by competent and substantial evidence, or were considered immaterial to the results reached.
FINDINGS OF FACT
By letter dated August 10, 1979, Indian River County (hereafter "County") submitted to the Department of Environmental Regulation (hereafter "Department" or "DER") applications for construction permits for the Gifford Area sewer treatment plant and collection improvements thereto, a domestic wastewater treatment and disposal system located in the County. (DER Exhibits Nos. 1 & 2).
After receiving the permit applications submitted by the County, the Department's Orlando District Office requested additional information to determine whether reasonable assurances were provided that the facility would not discharge, emit or cause pollution in violation of Department standards. (Testimony of William Bostwick; testimony of Chancellor; DER Exhibits Nos. 3, 4, 5, 6, 7 & 8).
The County, through its consulting engineers Sverdrup & Parcel and Associates, Inc., responded to the Department's requests for additional information. (DER Exhibits Nos. 3, 4, 5, 6, 7 & 8).
The Department presented testimony of two professional engineers in its employ, Mr. William M. Bostwick and Mr. Gerald Chancellor, both of whom were accepted as expert witnesses in the field of sewage treatment technology and the processing and evaluation of permit applications for sewage treatment plants. Both witnesses testified that in their expert and professional opinion, based on their review of all plans, test results and other information submitted by the County, the applicant provided the Department with reasonable assurances that the proposed construction and operation of the sewage treatment facility and its collection system would not discharge, emit or cause pollution in violation of Department standards. (Testimony of Bostwick; testimony of Chancellor).
The standards applicable to the subject construction permit applications involve (a) treatment level and (b) ambient standards of the receiving waters. The proposed system provides a minimum of ninety (90) percent treatment to incoming wastewaters. Because of the added features of surge tanks, gas chlorination, and dual blowers and motors, the ninety (90) percent minimum treatment was expected to be exceeded. (Testimony of Bostwick; testimony of Chancellor).
The secondarily treated effluent from the proposed sewage treatment plant will be dispersed by spray irrigation. Because the effluent is expected to percolate to area groundwaters, the ambient groundwater standards of Section 17-3.101, Florida Administrative Code are applicable. The discharge from the facility will not cause any violation of the groundwater quality standards of the Florida Administrative Code. (Testimony of Bostwick; testimony of Chancellor; testimony of Aront).
Although the design of the plant does not contemplate surfacewater discharge, if it did, it would meet the waste load allocation of Indian River County which permits discharge to surfacewaters. When the treated waste leaves the sprinkler head, it will meet secondary water treatment standards. (Testimony of Bostwick; testimony of Chancellor).
In the course of evaluating a permit application for a wastewater treatment plant, the Department considers only Chapter 403, Florida Statutes, and its implementing rules and regulations and does not consider local issues relating to zoning, the propriety of expenditure of public funds or the like. (Testimony of Bostwick).
There is presently no state standard regulating permissible levels of viruses in effluent discharged to either surface of groundwaters. Large numbers of viruses exist in the effluent discharged from spray irrigation treatment plants which operate at a ninety (90) percent treatment level. The viruses contained in the discharge remain viable as they percolate through the soil.
The greatest concern exists when humans are in physical contact with such discharge. However, the present sewage treatment facility in its existing condition is a greater threat to public health than the proposed spray irrigation system. (Testimony of Dr. Welling, Petitioner's Exhibits Nos. 1, 2 & 3).
Research concerning viral standards for effluent discharge is in an experimental stage. The Department is examining this question for possible future rule drafting. Neither the federal government nor any state, with the exception of Maryland, has adopted viral standards. (Testimony of Welling)
The design of Use Gifford plant contemplates a series of perimeter monitoring wells through which groundwater samples can be attained and tested for compliance with groundwater standards end the presence of viruses. (Testimony of Aront)
The plant will spray irrigate effluent at the rate of one (1) inch per week. Although surface run off is not expected, any that occurs due to heavy rains, etc., will be discharged into a perimeter ditch surrounding the plant. The plant design is formulated to retain effluent on site. (Testimony of Chancellor).
There are four (4) different types of soil on the site with a water permeability of moderately rapid to very rapid. These soils have a percolation rate which makes the site suited for the intended purpose provided surface drainage is obtained. On a conservative basis the site could accept up to fourteen (14) inches of water per day or ninety-eight (98) inches per week. (Testimony of Connell; testimony of Eng; DER Exhibit No. 6).
The parties stipulated prior to the hearing to the following:
The project complies with local zoning laws; and
The applicable provisions of law are Sections 403.086, 403.087, 403.088, Florida Statutes, and Rules 17-3.091, 17-4.03, 17-4.07 and 17-4.26, Florida Administrative Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The authority of the Department to require a permit for the construction of a sewage treatment facility is derived from Chapter 403, Florida
Statutes, and Chapter 17-4, Florida Administrative Code. See Section 403.087, Florida Statutes, which regulates the general issuance of permits by the Department. Sections 17-4.03, 17-4.07, 17-4.21 and 17-4.26, Florida Administrative Code, implement Chapter 403, Florida Statutes, and are applicable to the construction permitting of sewage treatment plants. Specifically, Section 17-4.07(1), Florida Administrative Code, provides that the Department may issue a permit
. . . only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the constitution, expansion modification, operation or activ- ity of the installation will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations
. . . (e.s.)
The substantive treatment and water quality standards applicable to sewage treatment facilities are found in Section 17-6.01(1), Florida Administrative Code, effective March 1, 1979, which require a ninety (90) percent treatment standard for sewage wastes and Section 17-3.101, Florida Administrative Code, effective March 1, 1979, setting forth groundwater criteria for Class I-B waters.
The unrebutted evidence in the record demonstrates that the proposed sewage treatment plant will meet the secondary treatment standard mandated by Section 403.086, Florida Statutes, and Section 17-6.101(1), Florida Administrative Code. Similarly, the uncontroverted evidence supports the Department's contention that the treatment facility will not violate the standards set forth in Section 17-3.101, Florida Administrative Code.
Under these circumstances, the County has met its burden of demonstrating a "reasonable assurance" that the sewage treatment facility will not discharge, emit or cause pollution in violation of Department standards, rules or regulations. Section 17-4.07, Florida Administrative Code.
Petitioner contends that Section 403.088, Florida Statutes, is applicable to these proceedings and that Section 403.088(3)(b), Florida Statutes, requires the Department to consider whether the granting of an operation permit which degrades receiving waters is necessary or desirable under federal standards and under circumstances which are clearly in the public interests. Respondents argue that Section 403.088, Florida Statutes, is inapplicable since the County has applied for a construction rather than an operation permit. The title to the section clearly limits its scope to operation permits as does Section 403.088(3)(b), Florida Statutes. Therefore, the Department is neither required nor authorized to consider the standards set forth in Section 403.088, Florida Statutes, in its review and evaluation of a construction permit application.
The matters which were raised by the Petitioner relative to alternative sites and the cost of the project are essentially local questions which are beyond the authority and expertise of the Department to consider.
Finally, Petitioner contends that the Department should refuse to issue the construction permit due to the possible spread of infectious viruses by spray irrigation treatment facilities. As noted previously, no standards
presently exist for monitoring of viruses in sewage effluent and the field is generally in an experimental stage. This facility, however, contains a series of monitoring wells from which effluent samples will be taken and analyzed. The analysis should include the detection and possible spread of viruses in the area of the effluent spray. Through such monitoring, the surrounding property owners and the Department would have information which could be used to seek corrective relief of a threat to the public health were to develop.
RECOMMENDATION
Upon consideration of the foregoing, it is RECOMMENDED:
That the Department issue a construction permit to the County on condition that sample effluent from the monitoring wells on the subject facility be regularly analyzed for compliance with Department rules and the existence of infectious viruses.
DONE and ENTERED this 3rd day of March, 1980, at Tallahassee, Florida 32301.
SHARYN SMITH
Hearing Officer
Division of Administrative Hearings
101 Collins Building Tallahassee, Florida 32301
COPIES FURNISHED:
Sherman N. Smith, Jr., Esquire Post Office Box 1030
Vero Beach, Florida 32960
George G. Collins, Jr., Esquire Post Office Box 3686
Vero Beach, Florida 32960
Segundo J. Fernandez, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Docket for Case No: 79-002193
Orders for Case No: 79-002193
| Issue Date |
Document |
Summary |
|
Apr. 25, 1980 |
Agency Final Order
|
|
|
Mar. 03, 1980 |
Recommended Order
|
Grant sewer facility permit to county on the condition effluent is continually monitored.
|
