STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MORTON SILVER, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 81-2676

) NORTH ORLANDO WATER AND SEWER ) COMPANY and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on June 29, 1982, in Orlando, Florida.

APPEARANCES

For Petitioner: Clayton D. Simmons, Esquire

Post Office Box 1330 Sanford, Florida 32771

For Respondent James M. Spoonhour, Esquire Applicant: Post Office Box 2809

Orlando, Florida 32802

For Respondent J. Alan Cox, Esquire and

DER: Jack D. Evans, Certified Legal Intern 2600 Blair Stone Road

Tallahassee, Florida 32301 BACKGROUND

By application filed on August 11, 1981, Respondent/Applicant, North Orlando Water and Sewer Company, sought a permit to authorize the construction of an effluent transmission system and two remote site effluent disposal facilities consisting of a 27.2 acre spray irrigation field and percolation/ evaporation ponds in Winter Springs, Seminole County, Florida. On September 27, 1981, Respondent, Department of Environmental Regulation, issued its Permit No. DC59-46435 authorizing the construction of the subject pollution source.

On October 17, 1981, Petitioners, Morton Silver and other property owners, filed a request for an administrative hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the issuance of the permit. As grounds for contesting the permit, Petitioners alleged that the ". . .permit was issued without sufficient engineering or environmental data in the application to provide reasonable assurance that the project can meet Florida water pollution

control regulations. . ." The matter was referred by Respondent/DER to the Division of Administrative Hearings on October 27, 1981, with a request that a Hearing Officer be assigned to conduct a hearing.

By Notice of Hearing dated November 23, 1981, a final hearing was scheduled for February 9, 1982, in Orlando, Florida. At the request of the parties, the final hearing was rescheduled to June 29, 1982, at the same location.

At the final hearing, Respondent/DER presented the testimony of William M. Bostwick, Jr., a Department field supervisor, and Gerald Chancellor, an engineer who initially processed the application for DER, and offered Respondent/DER Exhibits 1-4, each of which was received in evidence. Respondent/Applicant presented the testimony of James L. English, a professional engineer, Mark L. Mongeau, a geotechnical engineer, Gerald E. Seaburn, a hydrologist, John D. Froscher, its utilities manager, Dale A. Crosby, applicant's vice-president of engineering, and offered Applicant's Exhibits 1-9, each of which was received in evidence. Petitioners presented the testimony of Morton Silver, Charles Katz and Herbert G. Stangland, Jr., a professional engineer, and offered Protestants' Exhibits 1 and 2; both were received in evidence.

There was no transcript of hearing in this proceeding. Proposed findings of fact and conclusions of law were filed by Petitioners on July 6, 1982, and by Respondent/Applicant and Respondent/DER on July 12 and 14, 1982, respectively, and have been considered by the undersigned in the preparation of this order.

Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or not supported by competent and substantial evidence.

As finally clarified during the course of the hearing, and acknowledged by Petitioners in their pleadings, the only remaining issues herein are (1) whether public notice was required by Section 403.815, Florida Statutes, prior to the issuance of the permit, and (2) whether the applicant was required to take a census of surrounding water supply wells and reflect that information in its application.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent/Applicant, North Orlando Water and Sewer Company, filed an application on August 11, 1981, with Respondent, Department of Environmental Regulation, seeking a permit to authorize the construction of sewage effluent disposal ponds in Winter Springs, Seminole County, Florida.

   
   

2. On August 16, 1981, the Department advised the Applicant that additional information was required. This information was supplied by Applicant on September 11, 1981. After reviewing the application and supplemental information, the Department determined that Applicant had provided reasonable assurance that the proposed percolation ponds would not adversely affect waters of the State and thereafter issued Permit No. DC59-46435 on September 22, 1981, authorizing the construction of the requested activity.

3. Petitioners are owners of the property on which one of the disposal ponds is to be constructed. On June 12, 1981, Applicant instituted condemnation proceedings in Circuit Court for Seminole County under Chapters 73, 74 and 361, Florida Statutes, seeking to condemn the property so that the facilities could be constructed. The suit remains pending until all necessary permits from the Department are acquired by Applicant.

   
   

4. The parties agree that based on plans, test results and other information, the construction of the proposed installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations.

   
   

5. The permit was issued without formal public notice. However, it falls under the class of permits enumerated in Rule 17-1.62(3)(a), Florida Administrative Code. That rule makes publication of a notice discretionary on the part of the Department, and no abuse of discretion was shown.

   
   

6. Item D(i) on page 7 of the application requires that the Applicant "[i]ndicate the number of potable water supply wells within 500 feet of effluent disposal area, the depths of these wells and their approximate distances from the disposal area." Applicant answered "None". There are no public potable water supply wells within 500 feet of the effluent disposal area. There are several private potable water supply wells within 500 feet of the pond but adequate buffer zones between these private potable water supply wells and the actual effluent disposal area exist. Moreover, Petitioners' expert witness conceded that seepage would be minimal, should not be a concern, and the failure to list the private wells on the application had no effect on the substantive merits of the application.

   
   

7. Applicant construed the term "potable water supply wells" to mean only public wells since DER has no jurisdiction over private wells. For this reason, it answered the question in the manner that it did. The Department concurs in this interpretation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. Rule 17-4.07(1), Florida Administrative Code, provides in part as follows:

   
   

   1. A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations.

      
      

      The Applicant has affirmatively provided such information to the Department, and satisfied the requirements of the rule.

10. Section 403.815, Florida Statutes, reads as follows:

    
    

    403.815 Public notice; waiver of hearings.-- The department may publish or by rule require the applicant to publish, or the applicant may elect to publish, in a newspaper of general circulation in the area effected, notice of application for a permit submitted under this chapter or chapter 253. The notice of application shall be published within 14 days after the application is filed with the department. Notwithstanding any provision of

    s. 120.60, the department may publish or by rule require the applicant to publish, or the applicant may elect to publish, in a newspaper of general circulation in the area affected, notice of proposed agency action on any permit application submitted under this chapter or

    253. The notice of proposed agency action shall be published at least 14 days prior to final agency action. The 90-day time period specified in s. 120.60(2) shall be tolled for

    14 days by the publication, of notice of proposed agency action. However, if a petition is filed for a proceeding pursuant to

    s. 120.57, the time periods and tolling provisions of s. 120.60 shall apply. The cost of publication of notice under this section shall be paid by the applicant. The secretary may, by rule, specify the format and size of such notice. Within 14 days after publication of notice of proposed agency action, any person whose substantial interests are affected may request a hearing in accordance with s. 120.57. Failure to request a hearing within 14 days after publication of notice of proposed agency action shall constitute a waiver of any right to a hearing on the application under s. 20.57.

    
    

    Petitioners assert that the foregoing statute requires the publication of a notice as a prerequisite to issuing any permit. Because none was admittedly published, they contend that not only were they deprived of their right to appear and be heard when the agency acted on the application, but also that the homeowners who had private wells within 500 feet of the permitted disposal area had no opportunity to be heard.

    
    

11. The critical portion of the statute is found in the first sentence of the law. It reads as follows:

    
    

    The department may publish or by rule require the applicant to publish, or the applicant may elect to publish, in a newspaper of general circulation in the area affected, notice of application for a permit submitted under this chapter or chapter 253. (Emphasis supplied)

    In statutory construction it has been consistently held that statutes must be given their plain and obvious meaning. Maryland Casualty Company v. Sutherland,

    125 Fla. 282, 169 So. 679 (1936). It must be assumed that the Legislature knew the plain and ordinary meaning of words and that the word "may" when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word "shall." Florida State Racing Commission v. Bourguardez, 42 So.2d

    87 (Fla. 1949); Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. 1st DCA 1963). Accordingly, it is concluded that the statute makes the publication of notice permissive rather than mandatory, and that no error in procedure occurred. 1/ The same result is reached under the terms of Rule 17- 1.62(3)(a), Florida Administrative Code, and it is concluded that the duty to publish a notice thereunder is discretionary, and that no abuse of discretion has been shown.

    
    

12. Petitioners also contend that Applicant failed to properly answer question D(i) on the application, thereby rendering it erroneous and incomplete. The application form in question is the standard application to operate/construct domestic wastewater treatment and disposal systems as set forth in Rule 17-1.22(2), Florida Administrative Code.

    
    

13. The Department construes the wording of the question in a manner favorable to Applicant. This is, the term "potable water supply wells" includes only public wells since it has no jurisdiction over private supply wells. It has long been settled that in construing administrative rules and regulations, the established interpretation of an agency's own rule or regulation should be accorded great weight and should be controlling unless it is plainly erroneous or inconsistent. U.S. v. Larionoff, 97 S.Ct. 2150, 2155 (1977); Miami Beach v. Miller, 122 So.2d 578, 581 (Fla. 3rd DCA 1960); Louisville and N. R. Co. v. Speed-Parker, Inc., 130 Fla. 439 137 So. 724, 731 (1931). Petitioners having failed to demonstrate that the Department's construction of the form is plainly erroneous or inconsistent, it is concluded that Applicant's response to question D(i) was correct.

    
    

14. There being reasonable assurance that the construction of the facilities will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations, and all other procedures and requirements having been followed or met, the requested permit should be issued.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Permit No. DC59-46435 be issued to Applicant, North

Orlando Water and Sewer Company.

DONE and ENTERED this 23rd day of July, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1982.

ENDNOTE

1/ Even if Petitioners' interpretation of the statute were correct, such error in procedure was harmless and did not impair the fairness of the proceeding.

Subsection 120.68(8), Florida Statutes. It is noted that Petitioners were able to timely request a hearing, participate in discovery, and otherwise enjoy the role of an active party throughout the proceeding.

COPIES FURNISHED:

Clayton D. Simmons, Esquire Post Office Box 1330 Sanford, Florida 32771

James M. Spoonhour, Esquire Post Office Box 2809 Orlando, Florida 32802

J. Alan Cox, Esquire and Jack D. Evans, Certified

Legal Intern

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-002676

Orders for Case No: 81-002676