STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT FOSTER and FLOY SAWYER )

et al., )

)

Petitioners, )

)

vs. ) CASE NO. 80-1440

) SAM RODGERS and STATE OF ) FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lakeland, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 19, 1980. All parties who participated at the hearing were represented by counsel:

APPEARANCES

For Petitioner: Andrew R. Reilly, Esquire

Post Office Box 2039

Haines City, Florida 33844

For Respondent: Walter R. Mattson, Esquire Sam Rodgers 1240 East Lime Street

Lakeland, Florida 33801

For Respondent: David M. Levin, Esquire DER 2600 Blair Stone Road

Tallahassee, Florida 32301

This case concerns Phase I of Foxwood Lake Estates, the same proposed development that gave rise to North Lakeland Citizens League, Inc., et al., v. Sam Rodgers and State of Florida Department of Environmental Regulation, Case No. 80-1732 (Recommended Order entered December 8, 1980). The issue in the present case is whether the Department of Environmental Regulation (DER) should permit respondent Sam Rodgers (applicant) to excavate two percolation- evaporation ponds at the site the applicant proposes. Petitioners do not contest the propriety of DER's permitting either the sewage collection system of the type of aeration sewage treatment plant proposed by the applicant.

FINDINGS OF FACT

1. As planned, Phase I of Foxwood Lake Estates will consist of 300 mobile homes, which would require treatment of up to 45,000 gallons of sewage per day. The proposed sewage treatment plant would have a capacity of 46,000 gallons per day and would be capable of expansion. It would discharge treated, chlorinated

   water into a completely clay-lined polishing pond that has been designed for the whole of Foxwood Lake Estates at build-out; capacity of the polishing pond would be three times the capacity necessary for Phase I by itself. From the polishing pond, water is to flow into one or both of two evaporation-percolation ponds, either of which would be big enough for all the sewage expected from Phase I. The sides of these ponds would be lined with clay and a clay plug would constitute the core of the dike on the downslope side of each pond. According to the uncontroverted evidence, effluent leaving the treatment plant for the polishing pond would have been effectively treated by the latest technology and would already have been sufficiently purified to meet the applicable DER water quality requirements.

   
   

2. The applicant proposes to dig the triangular polishing pond in the northwest corner of the Foxwood Lake Estates property, some 400 feet east of the western property line. The evaporation-percolation ponds would lie adjacent to the polishing pond along an axis running northwest to southeast. Their bottoms would be at an elevation of 164.5 feet above mean sea level and they are designed to be three feet deep. The evaporation-percolation ponds would lie some 300 feet east of the western property line at their northerly end and some

   400 feet east of the western property line at their southerly end. A berm eight feet wide along the northern edge of the northern evaporation-percolation pond would be 50 feet from the northern boundary of the applicant's property.

   
   

3. Forrest Sawyer owns the property directly north of the site proposed for the evaporation-percolation ponds. He has a house within 210 feet of the proposed sewage treatment complex, a well by his house, and another well some

   300 feet away next to a barn. Two or three acres in the southwest corner of the Sawyer property are downhill from the site proposed for the ponds. This low area, which extends onto the applicant's property, is extremely wet in times of normal rainfall.

   
   

4. Together with his brother and his sister, Charles C. Krug owns 40 acres abutting the applicant's property to the west; their father acquired the property in 1926. They have a shallow well some 100 feet from the applicant's western property boundary, and farm part of the hill that slopes downward southwesterly from high ground on the applicant's property. Sweetgum and bayhead trees in the area are also a money crop. Charles C. Krug, whose chief source of income is from his work as an employee of the telephone company, remembers water emerging from this sloping ground in wet weather.

   
   

5. Borings were done in two places near the site proposed for the ponds. An augur boring to a depth of six feet did not hit water. The other soil boring revealed that the water table was 8.8 feet below the ground at that point. The topsoil in the vicinity is a fine, dark gray sand about six inches deep. Below the topsoil lies a layer of fine, yellow-tan sand about 30 inches thick. A layer of coarser sand about a foot thick lies underneath the yellow-tan sand. Beginning four or five feet below the surface, the coarser sand becomes clayey and is mixed with traces of cemented sand. Clayey sand with traces of cemented sand is permeable but water percolates more slowly through this mixture than through the soils above it.

   
   

6. The applicant caused a percolation test to be performed in the area proposed for the ponds. A PVC pipe six feet long and eight inches in diameter was driven into the ground to the depth proposed for the evaporation-percolation ponds and 50 gallons of water were poured down the pipe. This procedure was repeated on 14 consecutive days except that, after a few days, the pipe took only 36 gallons, which completely drained into the soil overnight. There was

   some rain during this 14-day period. Extrapolating from the area of the pipe's cross-section, Vincent Pickett, an engineer retained by the applicant, testified that the percolation rate of the soils was on the order of 103 gallons per square foot per day, as compared to the design assumption for the ponds of 1.83 or 1.87 gallons per square foot per day.

   
   

7. Water percolating down through the bottoms of the evaporation- percolation ponds would travel in a southwesterly direction until it mixed with the groundwater under the applicant's property. It is unlikely that the ponds would overflow their berms even under hurricane conditions. Under wet conditions, however, the groundwater table may rise so that water crops out of the hillside higher up than normal. The proposed placement of the ponds makes such outcropping more likely, but it is impossible to quantify this enhanced likelihood in the absence of more precise information about, among other things, the configuration of the groundwater table.

   
   

   CONCLUSIONS OF LAW

   
   

8. At the close of all the evidence, DER moved to dismiss all petitioners except for Mr. and Mrs. Sawyer, Mr. Charles Krug, and the North Lakeland Citizens League, Inc.; and the motion was granted for failure of the petitioners to whom the motion was directed to prove that their interests would be substantially affected by DER's action on the permit application.

   
   

9. As an application for a construction permit, respondent has the burden to provide "the Department with reasonable assurance based on plans, test results, and other information, that the construction will not . . . cause pollution in contravention of Department standards, rules, or regulations."

   Rule 17-4.07(1), Florida Administrative Code. That the DER has reasonable assurance that the proposed sewage treatment plant will meet the requirements of Rule 17-6.01, Florida Administrative Code, has not been disputed. Similarly, there is no dispute about whether the effluent will meet the water quality standards laid down by Rules 17-3.101 and 17-6.20, Florida Administrative Code.

   
   

10. As petitioners see it, this is not a water quality case. The petitioners concern is that, as their expert predicted, water percolating into the ground will raise the groundwater table to the point that water will emerge downslope from the ponds and cascade down the surface, flooding their lands. The evidence cannot be said to have ruled out this possibility. For that reason, petitioners contend that Rule 17-4.245, Florida Administrative Code,

    requires that the permit application be denied. Respondents argue that Rule 17- 4.245, Florida Administrative Code, requires that the permit application be denied. Respondents argue that Rule 17-4.245, Florida Administrative Code, is concerned with water quality only and that the applicant has furnished reasonable assurance that he will not violate the rule. Rule 17-4.245, Florida Administrative Code provides:

    
    

    1. Upon affirmative demonstration by a permittee or permit applicant, that a proposed groundwater discharge will not cause significant adverse effects to the designated uses of the adjacent groundwaters or surface waters, the Department shall define a zone of discharge for such proposed discharge based upon, but not limited to, considera- tion of the following:

       1. Physical, chemical, and hydro- logical characteristics of the receiving strata; and,

       2. Method of discharge, and,

       3. Cumulative effect on all zones of discharge; and,

       4. The conditions and direction of the receiving groundwater; and,

       5. Other present and known future sources of pollutants, and,

       6. Proximity of present and known future water supply facilities, and,

       7. The nature, volume, and frequency of the proposed discharge of waste including synergistic effects with other pollutants or substances which may be present in the receiving groundwaters; and,

       8. Geologic conditions; and,

       9. Public health, safety and welfare.

          
          

    2. Section 17-3.051, F.A.C., shall not apply within zones of discharge

       and Subsection 17-3.051(2), F.A.C., shall not apply to groundwaters. Provided, however, that all groundwaters shall be free from substances in concentration which:

       1. are harmful to plants, animals, or organisms native to the soil and responsible for treatment or stabiliza- tion of waste material as required by Department permit; or,

       2. pose a serious danger to the public health, safety, or welfare.

          
          

    3. No zone of discharge shall be afforded to groundwater discharge permitted by the Department after the adoption of Section 17-4.245, F.A.C., unless a Department permit including a description of the limits of the zone of discharge has been issued for that discharge.

       
       

    4. Zones of discharge for ground-

       water discharges existing on the effective date of this rule shall be deemed to extend to the property limits of the discharger unless the permittee demonstrates,

       pursuant to paragraph (5) below, that a larger zone of discharge is appropriate, or unless the Department determines that a more restrictive zone of discharge is necessary, pursuant to paragraph (1) above, in which case a new zone of dis-

       charge will be specified at the time of permit issuance, renewal, or modification.

       
       

    5. A zone of discharge shall not extend beyond the property limits of the discharger unless the applicant affirma- tively demonstrates in a public hearing, after notification of adjacent property owners, and after public notice in the "Florida Administrative Weekly" and in a newspaper of general circulation in the area in which the zone of discharge is proposed, that the proposed discharge will not significantly impair any of the designated uses of the receiving ground- water or surface waters.

A reading of Rule 17-4.245, Florida Administrative Code, supports respondent's position. The zone of discharge proposed by the DER in the present case extends to the western edge of the applicant's property. The preponderance of the evidence was that underground mixing of the discharge from the evaporation- percolation ponds with groundwater would occur well east of the property line.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That DER grant the application on the conditions specified in its notice of intent to issue the same.

Respectfully submitted and entered this 17th day of December, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32301 Telephone: 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980.

COPIES FURNISHED:

Andrew R. Reilly, Esquire Post Office Box 2039

Haines City, Florida 33844

Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801

David M. Levin, Esquire Department of Environmental

Regulation

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

Docket for Case No: 80-001440

Orders for Case No: 80-001440