STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE CITY OF TALLAHASSEE, a )

municipal corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2303

)

STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, FALLSCHASE SPECIAL ) TAXING DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 16, 17 and 18, 1980, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Bryan Henry and

James R. English Tallahassee, Florida

For Respondent: William L. Hyde (Department) Tallahassee, Florida

For Respondent: J. D. Boone Kuersteiner (Fallschase) Tallahassee, Florida

For Intervenor: Kenneth F. Hoffman (Sunshine Land Tallahassee, Florida Development, Inc.,

and Elba, Inc.)

On or about August 17, 1979, the Fallschase Special Taxing District ("Fallschase" hereafter) filed an application with the Department of Environmental Regulation seeking a permit to construct a sewage treatment plant. The Department requested additional information, and this was furnished on or about September 29, 1979. On October 30, 1979, the Department issued its notice of intent to issue a construction permit for the proposed facility. The City of Tallahassee filed a request for administrative hearing on November 13, 1979.

The Department thereafter forwarded the Petition to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was originally scheduled to be conducted on January 22 and 23, 1980. A prehearing conference was conducted on December 13, 1979, and the parties agreed to a rescheduling of the final hearing

to commence on January 16, 1980. The corporate developers of the Fallschase area; Sunshine Land Development, Inc., and Elba, Inc.; petitioned to intervene in the proceeding, and the petition was granted by Order entered December 17, 1979. A Motion to Dismiss or to strike filed by Fallschase and concurred in by the Intervenors was granted in part and denied in part by Order entered January 10, 1980, and on the record at the final hearing.

The following witnesses testified on behalf of the Department: Keith C. Rice, a Domestic Wastewater Supervisor employed by the Department; Phillip J. Doherty, the Department's Northwest District Engineer; and Dr. G. J. Thabaraj, the Chief of the Department's Bureau of Water Analysis. The following witnesses testified on behalf of Fallschase: Glenn M. Dykes, Jr., the Administrator of the Drinking Water Section of the Department's Bureau of Drinking Water programs, Division of Environmental Programs; and James E. Carter, the District Manager of Fallschase. Lamar Bailey, the principal stockholder in both intervenor corporations, testified on behalf of the Intervenors. The following witnesses testified on behalf of tire City of Tallahassee: Hugh Parmlee Bradley, the Supervisor of the City's Sewage Collection System; William G. Leseman, the City's Laboratory Supervisor, Michael T. Murphy, a consulting engineer employed by the firm which serves as the City's consulting engineering firm; Travis Michael Schneider, the Program Manager of the City's "201 program"; and Thomas P. Smith, the City's Director of underground Utilities. The City presented the testimony of Thomas Groover, a consulting engineer who serves Fallschase, among other clients, through a deposition which was received in evidence as Petitioner's Exhibit 7.

Hearing Officer's Exhibits 1 and 2; Petitioner's Exhibits 1 through 12, 14,

15, 17, 18 and 20; Department of Environmental Regulation Exhibits 1 through 7;

Fallschase Exhibits 1, 3, 4 and 7; and Intervenors' Exhibit 1 were received into evidence at the final hearing. Petitioner's Exhibits 13, 16 and 19; and Fallschase Exhibits 2, 5, 6 and 8 were offered into evidence, but were rejected. The parties have submitted post-hearing legal memoranda or proposed Recommended Orders. To the extent that proposed findings and conclusions set out in the proposed Recommended Orders have not been incorporated into the findings of fact and conclusions of law set out hereafter, they have been rejected as either not supported by the evidence, or as irrelevant to the issues.

FINDINGS OF FACT

1. Fallschase is a special taxing district which was created by the Board of County Commissioners of Leon County, Florida, in Leon County Ordinance No. 75-6. The district contains approximately 620 acres and is located in the area of the intersection of U.S. Highway 90 and Buck Lake Road in Leon County, Florida. The Intervenors are corporations which are seeking to develop the Fallschase area into a residential community. Through its permit application, Fallschase is seeking authority to construct a 167,000 gallon per day sewage treatment plant which would serve the proposed development. The plant would be of the extended aeration type with tertiary filters. Effluent from the plant would be discharged into a Percolation pond system.

   
   

2. The City of Tallahassee operates a sanitary sewer system which serves areas within the city limits, as well as many unincorporated areas of Leon County. Service is provided to the unincorporated areas of the county in accordance with a contract between the City and Leon County which was executed in 1973. No election has been conducted within Leon County to authorize the contract. The County has terminated the contract, but the termination will not be effective until November 12, 1980. The City's sanitary sewer system is a

   regional system in that it serves a broad area not limited by the political boundaries of the City. The City's system has operated under temporary permits issued by the Department for a number of years because it does not meet the Department's requirements for tertiary sewage treatment.

   
   

3. The City's regional sewage treatment system is capable of providing service to Fallschase. A 10-inch sewage pipe known as the "Belle Meade" Line runs adjacent to Fallschase. If a pumping station were constructed, sewage from Fallschase could be pumped into the Belle Meade Line and eventually into the City's primary sewage lines for treatment at one of the City's treatment facilities.

   
   

4. In accordance with its statutory responsibilities, the Department has adopted Rule 17-4.26, Florida Administrative Code, which relates to permit requirements for sewage works. As filed with the office of the Secretary of State, the rule provided as follows:

   
   

   1. No person shall operate, maintain, construct, alter, modify, or expand

      any sewage collection system, sewage disposal system or sewage treatment facilities without a current and valid permit from the Department, pursuant to the Provision of Chapter 17-6, Florida Administrative Code.

   2. The Department shall deny an appli- cation for a permit and refuse to issue a permit unless the sewage collection, treatment and disposal system will pro- vide adequate and effective treatment

      in accordance with the rules and regu- lations of the Department and unless the system will operate as part of a regional system if one exists or be capable of tying into a regional system should one be established.

   3. Applications for a permit under this section shall be in accordance with Part I, Chapter 17-4, Florida Administrative Code. (e.s.)

      
      

      As filed with the Secretary of State, the rule included a clear policy choice in favor of regionalization of sewage treatment systems. In accordance with its responsibilities, the office of the Secretary of State published the rule in the Florida Administrative Code. When the rule was published in the Code, the portion of the rule which is underlined in the above quote was omitted. The rule as published in the Code thus did not include a clear statement requiring regionalization, and does not make sense. This erroneous version of the rule has been published in the Florida Administrative Code for more than five years, and the error has been compounded in that the Department has utilized the Florida Administrative Code version of the rule in its official handouts. A citizen requesting a current copy of Rule 17-4.26 from the Department, or from the Secretary of State's office, would receive the erroneous rule. The error has been further compounded because the Department subsequently adopted a policy of evaluating applications for sewage treatment proposals without regard to whether hookups to a regional system were possible. This policy has been

      applied by the Department for at least three years in accordance with verbal and written instructions of the Department's then Secretary, Jay Landers.

5. Additional language was later added to Rule 17-4.26 as follows: Except for regional treatment plants,

   as designated by approved metropolitan or basin plans, all permits for treat- ment plants shall be valid only until connection, according to an approved

   plan, can be made to regional facilities. Such connection shall be made within ninety (90) days of the scheduled date for connection as provided in the approved plan.

   
   

   This provision has no applicability to the City's treatment system because the City's system has never been approved as the metropolitan or basin clan by the Department.

   
   

6. The City has contended that the sewage treatment plant proposed by Fallschase would result in violations of the Department's standards for nitrates in the groundwater in the area of the plant. Nitrates would be a constituent of the effluent which would be discharged from the proposed sewage treatment plant into percolation ponds. The engineer who has designed the proposed plant estimated that total nitrogen discharged into the percolation ponds would be approximately 20 milligrams per liter, or parts per million (p.p.m.). In extended aeration plants such as that proposed by Fallschase, a substantial portion of the nitrogen would be in the form of nitrates. The 20 p.p.m. estimate is high. The experience generally in north Florida has been that nitrogen concentrations would not exceed 10 p.p.m. in the effluent discharged into percolation ponds. Once the effluent is discharged into the ponds, a certain amount of nitrogen is removed during the settling process. As the effluent percolates through the subsoils into the groundwater, further nitrogen is removed. Estimates of nitrogen removal through these processes range from a low of 25 percent to a high of 75 percent. The groundwater below the proposed plant is classified as Class 1-B groundwater under the Department's rules. It is very unlikely that effluent reaching the groundwater would contain as much as

   10 p.p.m. nitrates. Even if it did, mixing with the groundwater would cause an almost immediate dilution of nitrogen concentrations so that concentrations in the groundwater as high as 10 p.p.m. would be unlikely in the extreme.

   
   

7. Many sewage treatment plants operate within the Department's northwestern region, which extends from Pensacola to Tallahassee. The Department monitors these plants. A violation of the Department's nitrate standards has never been observed in the region. Indeed, in the entire State of Florida, nitrate violations have been detected only in certain areas of Dade County.

   
   

8. Testimony was presented by the City to the effect that chemical processes in percolation ponds can cause very drastic nitrate concentrations when the funds are intermittently flooded and drained. Such concentrations have been observed at one of the City's treatment plants. The City`s plant, however, is of a different sort than that proposed by Fallschase. The City's plant produces concentrations of nitrogen in ammonia compounds and utilizes intermittent drying and flooding of the percolation ponds as a part of its operation. Ammonia compounds will not be a major constituent of effluent placed

   in the Fallschase percolation ponds; and, furthermore, the ponds will not be intermittently flooded and drained in the manner that would cause such concentrations to develop.

   
   

9. In its Notice of Intent to Issue the proposed permit, the Department indicated that sludge produced through the proposed treatment facility should be disposed of by hauling to a plant operated by the City. The City has indicated that it will not make its plant available for such disposal, and cotends that accordingly Fallschase has given no reasonable assurances that the sludge will be disposed of properly. The contention is without merit. Many alternatives exist for disposal of sludge. Fallschase has adequate area available to it for construction of sludge drying pits. Sludge can be hauled to many potential locations. Specific issues respecting sludge disposal can be addressed in the operating permit which would not be issued by the Department until it is established that the proposed plant can operate within the Department's rules and regulations.

   
   

10. The soils which lie below the proposed percolation ponds are not of a highly permeable sort. To aid in the percolation of effluent through the ground into the groundwater, Fallschase proposes to construct two-foot diameter holes in the bottom of the percolation ponds. The holes would extend from 18 to 25 feet below the bottom of the percolation ponds. The holes would be filled with sand, and alternatingly coarse layers of gravel. The City has contended that these holes would constitute wells, and that they therefore would need to be permitted by the Department. This contention is without merit. These structures could fit loosely within the definition of a well, but their function is merely to aid in the percolation of effluent through the subsoils. They are not designed to inject effluent directly into the groundwater. These structures would constitute wells to the same extent that any drain field would constitute a well.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and over the parties. Sections 120.57(1), 120.60, Florida Statutes (1979). The Department has the authority to require construction and operating permits for the sewage treatment plant proposed by Fallschase. Sections 403.08(7), 403.161, Florida Statutes; Rules 17-4.03, 17- 4.26, Florida Administrative Code.

    
    

12. The City has predicated its standing upon allegations that it will suffer environmental injury in fact, and allegations that it operates a regional sewage treatment system which Fallschase could utilize. The City originally contended that it had standing on several other grounds, but these have been rejected and were the subject of a Motion to Strike which was granted in part by Order entered January 10, 1980, and in part by rulings made on the record at the final hearing.

    
    

13. The City contends that Rule 17-4.26 as it was filed by the Department with the Secretary of State controls this proceeding, and that the permit cannot be issued since the City has an available regional sewage treatment system which Fallschase can utilize. While it is true that in the case of statutes errors in publication of the statute cannot defeat the actual statute as adopted by the Legislature; see, e.g., Shuman v. State, 358 So.2d 1333 (Fla. 1978); publication is an essential aspect of rule making under the Florida Administrative Procedure Act. Section 120.53(3), Florida Statutes, provides:

    No agency rule or order is valid for any purpose until it has been made available for public inspection as herein required . . .

    
    

    Public inspection required under the Act includes publication in the Florida Administrative Code, and an agency making its rules available to members of the public who request it at cost. Under the circumstances of this case, the rule as published in the Florida Administrative Code and as distributed by the Department of Environmental Regulation must control. The circumstances which give rise to this conclusion are the following:

    
    

    1. The fact that the rule was erroneously published in the Florida Administrative, Code for more than five years;

    2. The fact that the Department distributed copies of the erroneous rule to members of the public for a period of more than five years;

    3. The fact that the Department actually adopted a policy of not requiring regionali- zation as was clearly the intent of the rule

       as originally filed with the Secretary of State, but was not clearly the intent of the rule as published; and

    4. The fact that the Department has issued numerous permits to sewage treatment facilities in the past despite the existence of available regional treatment systems.

    
    

14. Fallschase has provided reasonable assurance that its proposed sewage treatment plant can be operated within all rules and regulations of the Department, and that it will not result in violations of the Department's water quality standards. The City's contention that reasonable assurances have not been provided with respect to nitrate standards is not supported by the evidence.

    
    

15. The City's contention that Fallschase has not provided reasonable assurance that it can properly dispose of sludge produced at the plant has not been sustained. Although Fallschase will not he able to dispose of sludge at the City's plant as set out in the Department's Notice of Intent to issue Permit, many other alternatives for disposing of sludge exists. It is appropriate that the Department condition the granting of a permit to Fallschase on the development of an appropriate plan for sludge disposal.

    
    

16. The holes which Fallschase proposes to construct in the bottom of the percolation ponds, and to fill with sand and gravel, do not constitute wells so as to require permits as wells by the Department.

    
    

17. The Department should issue a permit as set out in its Notice of Intent to Issue, except that modifications should be made with respect to disposal of sludge.

RECOMMENDED ORDER

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

RECOMMENDED:

That the Department of Environmental Regulation issue a construction permit to the Fallschase Special Taxing District which would include the terms and conditions set out in the construction permit which was received in evidence as Department of Environmental Regulation Exhibit 7.

RECOMMENDED this 18th day of February, 1980, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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

(904) 488-9675

COPIES FURNISHED:

Bryan W. Henry, Esquire J. D. Boone Kuersteiner, Esquire James R. English, Esquire 350 East College Avenue

Henry, Buchanan, Mick Tallahassee, Florida 32301 & English, P.A.

Post Office Drawer 1049 Tallahassee, Florida 32302

William L. Hyde, Esquire Jacob D. Varn, Esquire Department of Environmental Secretary, Department of

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

Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302

Docket for Case No: 79-002303

Orders for Case No: 79-002303