STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDDIE PRESSLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1609

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on May 13, 1983, in Panama City, Florida.

APPEARANCES

For Petitioner: Freddie Pressley, pro se

c/o Hiland Park Laundry 2431 Highway 231

Panama City, Florida 32405

For Respondent: Dennis R. Erdley, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

This cause arose through a petition filed by the Petitioner, Freddie Pressley, wherein he contested the Department's Notice of Intent to Deny him a Temporary Operating Permit (TOP) for an industrial wastewater treatment and disposal system for treating and disposing of the effluent from his laundromat.

The Petitioner presented two witnesses and Exhibits A, B and C, which were admitted into evidence. The Respondent presented three witnesses and Exhibits One through Ten, which were admitted. The Respondent timely filed proposed findings of fact and conclusions of law. The issue herein concerns whether the effluent discharged by the laundry into waters of the state meets water quality parameters contained in Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code, and, consequently, whether the permit should be issued.

FINDINGS OF FACT

1. The Petitioner and his father own and operate the Hiland Park Laundry, a laundromat located at 2431 Highway 231, Panama City, Florida. The Petitioner purchased the business in 1975 and has operated continuously since that time. Wastewater from the laundry, as well as a trailer on the property, passes through a "trickling filter" wastewater treatment facility consisting of primary

   and secondary settling tanks as well as a trickling filter, thus discharging the treated effluent into a drainage ditch adjacent to the Petitioner's property line, from which drainage ditch the effluent is discharged into Beatty Bayou, a Class III water of the State. The treatment plant and disposal system has been operating since the early 1970's, prior to the Petitioner's purchase of the laundromat and treatment and disposal facility.

   
   

2. In 1980, the Petitioner applied for an operating permit for his wastewater treatment facility. Because the discharge from the facility violated the effluent limitations of Chapter 17-6, Florida Administrative Code, the Petitioner was only issued a Temporary Operating Permit on February 2, 1981, which was modified by virtue of the letter from DER on June 8, 1981. The pertinent conditions in the TOP provided that the discharge from the Petitioner's wastewater treatment system must meet the requirements of Chapter 17-6, Florida Administrative Code, as to the quality of its effluent prior to its expiration. Failure to meet that condition would result in a denial of a Permanent Operating Permit and the denial of any further TOP. The pertinent effluent limitation which the TOP (and rules) required the facility to meet was

   90 percent removal of biochemical oxygen demand and suspended solids. Since the issuance of the TOP, the discharge from the plant has seldom met those standards.

   
   

3. Upon applying for the TOP, which is the subject of this proceeding, the Petitioner failed to present any concrete plans for improving the quality of the effluent from his plant. He merely stated his acknowledgment that, although the system does not comply with current DER requirements, that it will be dismantled upon the Bay County Regional Sewage Treatment and Disposal System becoming available at his location. It is not established, however, that there are any current plans to extend public sewer service to the vicinity of the Petitioner's property at the present time. (DER Exhibit 9)

   
   

4. Upon the issuance of the Notice of Intent to Deny the request for the TOP, the Petitioner requested a formal proceeding and the cause was set for hearing before the undersigned on September 24, 1982. At the time of the hearing, the parties agreed on the record to a continuance on the basis that the Petitioner would submit within 60 days a plan certified by an appropriate engineer for a design to bring the discharge effluent into compliance with the effluent parameters of Chapter 17-6, Florida Administrative Code. It was suggested at that time to the Petitioner that his plant and system might comply with the permit exemption contained in Rule 17-4.60, Florida Administrative Code, which provides that such plants are exempt from permitting requirements if they incorporate a trickling filter, a sand filter, as well as a drain field. The Petitioner elected to avoid purchasing a sand filter unit inasmuch as a civil engineer he consulted informed him that the purchase and installation price for such a unit would be approximately $17,000.00, with the attendant drain field estimated to cost an additional $13,000.00. It was established contrarily however that because of the actual peak and average flows of the plant which equate to a daily hydraulic loading on the proposed sand filter of 7,000 gallons per day and 6,000 gallons per day, respectively, that a much smaller sand filter would be required, at a much reduced price. Thus, it was established that a figure of $9,000.00 to $10,000.00 would be the appropriate cost of installing the sand filter which would exempt the facility from the permitting requirements. The concrete slab proposed to be used by the Petitioner's engineer at a cost of in excess of $4,000.00 would not be necessary with a properly designed sand filter with underdrains and grated gravel courses.

5. Based upon his own engineer's estimate of approximately $30,000.00 for the required upgrading, the Petitioner informed the Department that he was not able to underwrite such a high expense and would prefer to find some other solution to the problem. As of the date of the hearing, the Petitioner still was desirous of the Department conferring with him to find a less expensive solution to the problem, but failed to adduce any evidence to establish that such a less expensive solution (less than the solution proposed by the Department) existed. During the period the case was held in abeyance for 60 days after the scheduling of the first hearing in September, 1982, during which time the parties had agreed to seek a solution to the problem involving denial of the permit application, and thereafter until the subject hearing, the Petitioner made no substantial efforts to confer with the personnel of DER and attempt to arrive at a feasible solution to the treatment and disposal problem upon which the denial of the permit application was based.

   
   

6. Carol Daugherty is a chemist whose firm supplies the Department with the Petitioner's monthly operating reports, and obtains samples of effluent upon which those reports are based. She performs the testing on the samples from the plant's effluent discharge and engages somewhat in operation of the plant. The Petitioner's discharge has consistently failed to comply with the BOD and total suspended solids effluent limitations listed in Rule 17-6.060, Florida Administrative Code, providing for 90 percent removal of those effluent constituents.

   
   

7. William Young, accepted expert witness in the field of biology and water quality assessment, visited the site in February, 1982, and in April, 1983, taking water quality samples from a drainage ditch both upstream and downstream of the Petitioner's discharge point. Chemical analysis of the samples reveal that the Class III parameter for bacteriological quality (coliform bacteria) was violated downstream of the discharge point. An imbalance existed in the bayou in natural populations of aquatic flora and fauna establishing there to be violation of permissible nutrient levels in terms of the excessive deposition of nutrients from the Petitioner's plant into the drainage ditch and thence into the bayou. Mr. Pressley's facility is not the only source of discharge into the drainage ditch which discharges into the bayou, but is the primary source of discharge.

   
   

8. Rick Bradburn also was accepted as a expert witness in the field of biology and water quality assessment. He has visited the Petitioner's facility on a number of occasions and periodically has reviewed the monthly operational reports supplied by the Petitioner. The Petitioner's effluent, on a regular basis, is characterized by excessive biochemical oxygen demand, excessive total suspended solids and excessive fecal coliform bacteria counts vis-a-vis the standards and the rules cited hereinbelow. The discharge from the Petitioner's facility thus seldom exceeds 85 percent removal of biochemical oxygen demand and suspended solids (over the past 23 months) and is characterized by excessive nutrient deposition in the Class III waters of the State.

   
   

9. The Petitioner has known, or should have known, since shortly after February 2, 1981, when the original TOP was issued with the subject condition regarding required upgrading of the plant and disposal system, that additional upgrading would be required in order to render the effluent produced by plant less degradory. Since that time he knew, or should have known, that the failure to take steps to achieve such upgrading of the treatment and effluent disposal system would jeopardize his continued operation of his business. The Petitioner has made little effort to arrive at and submit plans to achieve a more qualitative level of effluent treatment and as of the time of the hearing had

   not yet submitted a reasonable compliance schedule nor any sort of commitment to construct needed additional treatment facilities, even though the parties do not dispute that the effluent produced by the plant does not meet the required standard of 90 percent removal of biochemical oxygen demand and suspended solids.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. Section 120.57(1), Florida Statutes (1981).

    
    

11. Pursuant to Rule 17-4.25, Florida Administrative Code, persons who do not qualify for a permanent water pollution operation permit may apply for a temporary operation permit.

    
    

12. Section 403.088(4)(c), Florida Statutes (1981), provides:

    
    

    1. After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds:

       1. The proposed discharge does not qualify for an operation permit;

       2. The applicant is constructing, in- stalling, or placing into operation, or has submitted plans and reasonable schedules for constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treat- ment or disposal is known or recognized but is making a bone fide effort through research and other means to discover and implement such a method;

       3. The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of

          an approved and acceptable pollution abate- ment facility or alternate waste disposal system;

       4. There is no present, reasonable, alter- native means of disposing of the waste other than by discharging it into the waters of the state;

       5. The denial of a temporary operation permit would work an extreme hardship upon the applicant;

       6. The granting of a temporary operation permit will be in the public interest; or

       7. The discharge will not be unreasonably destructive to the quality of the receiving waters.

          
          

13. Section 17-4.07, Florida Administrative Code, provides standards for the issuance or denial of permits and provides as pertinent hereto that:

    
    

    (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 assurances based on plans, test results and other information, that the construction, expansion, modification, operation or acti- vity of the installation will not discharge, emit, or cause pollution in contravention of department standards, rules or regulations

    . . . .

    
    

    The applicant herein has submitted no plans, test results, or other information required by the Department before obtaining his permit. Further, the Petitioner was informed many months before the first hearing scheduled in this cause that, pursuant to Rule 17-4.60, Florida Administrative Code, his laundromat could be exempt from permitting requirements for wastewater disposal systems if it incorporated both a trickling filter, a sand filter, and a drain field. Even with this knowledge, the applicant made no concrete efforts to secure the installation of a sand filter and provided no plans, designs or other assurances that his installation or its activity or operation would not cause pollution in contravention of the Department standards. There is no dispute that the applicant's wastewater treatment plant and disposal system fails to comply with the BOD and total suspended solids effluent limitations (90 percent removal) listed in Rule 17-6.060, Florida Administrative Code, and further fails to comport with appropriate parameters for bacteriological quality for discharge into the Class III waters of Beatty Bayou. Rule 17-3.121(5), Florida Administrative Code. Further, expert witness Young (as corroborated by DER Exhibits 5 and 6) established that the discharge into the Class III waters had resulted in a violation of nutrient deposition parameters for Class III waters of the State as provided in Rule 17-3.121(19), Florida Administrative Code.

    
    

14. It is obvious, given the evidence in this record, upon which the above Findings of Fact are based, that the Petitioner has consistently failed to make any concrete effort to arrive at a design, plan, or proposed method by which the pollution in excess of appropriate limits delineated in the above cited authority, may be alleviated. He has known for over a year of the fact that the installation of a sand filter to his treatment plant and disposal system would resolve this dispute. He made one feeble effort to contact a consulting engineer who provided him with an exorbitant cost figure for the installation of a sand filter and concrete slab upon which to place it and attendant incidental labor and materials. When informed by the Department that a sand filter was available at a substantially lower cost for purchase and installation, he failed to utilize this information in attempting to achieve a plan for alleviation of the pollution his facility is causing so as to either comport with the above permitting requirements or render his installation exempt from them. When this proceeding was originally set for hearing in September of, 1982, the Department voluntarily forebore from proceeding to formal hearing to give the Petitioner another 60 days to attempt to achieve a solution to the above described problem. This he failed to do although he had substantially more than 60 days before the

    hearing could be rescheduled in which to make some progress. He has not presented a scintilla of evidence to show that the facility is not causing pollution in violation of above standards and which could therefore have provided affirmative, reasonable assurances that a permit should be issued to him for the plant as it now exists and operates.

    
    

15. In a licensing proceeding such as this, an applicant has the burden establishing, by a reponderance of the evidence, entitlement to the requested license. See, Rule 17-1.59(1)(a), Florida Administrative Code. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). The Petitioner in this cause, the permit applicant, has simply failed to establish any entitlement to a TOP, given the evidence adduced in this cause.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that the application of Freddie Pressley for a Temporary Operating Permit allowing continued operation of a wastewater treatment and disposal facility in Bay County, Florida, be and the same is hereby DENIED.

DONE and ENTERED this 23rd day of August, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF 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 August, 1983.

COPIES FURNISHED:

Freddie Pressley

c/o Highland Park Laundry 2431 Highway 231

Panama City, Florida 32405

Dennis R. Erdley, Esquire Department of Environmental Regulation

Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation

Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 82-001609

Orders for Case No: 82-001609