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MILES REALTY, MARY REILEY, THEODORE CAREY, ET AL. vs. GAR-CON DEVELOPMENT, INC., AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 83-000694 (1983)

Court: Division of Administrative Hearings, Florida Number: 83-000694 Visitors: 23
Judges: ROBERT T. BENTON, II
Agency: Department of Environmental Protection
Latest Update: Dec. 05, 1983
Summary: Whether Gar-Con's revised application for a permit to construct a sewage plant, and soakage trenches to dispose of the effluent, should be granted?Grant permit to Respondent to construct wastewater treatment facility. Even when the Petitioners doesn't put on case, burden of proof is on Respondent.
83-0694.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


MILES REILEY, MARY REILEY, ) THEODORE CAREY, CHARLENE CAREY, ) ROBERT J. DAYTON, GEORGES BLAHA ) AND PATRICIA COLE-BLAHA, et al, )

)

Petitioner, )

)

vs. ) CASE NO. 83-694

) GAR-CON DEVELOPMENT, INC., and ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)


RECOMMENDED ORDER


This matter came on for hearing in Melbourne, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on September 2, 1983.


APPEARANCES


For Petitioner: The named petitioners appeared pro se.

No appearance was entered by or on behalf of any other petitioner.


For Respondents: William H. Green, Esquire

Richard S. Brightman, Esquire For Gar-Con Development, Inc. Post Office Box 6526 Tallahassee, Florida 32301


J. Alan Cox, Esquire

For State of Florida Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301


After Gar-Con Development, Inc. (Gar-Con) applied for a permit to construct a wastewater treatment facility, the Department of Environmental Regulation (DER) indicated its intention to grant the application, and notice was published to that effect. Within fourteen days and at various times subsequently, the named petitioners and others indicated their desire for formal administrative proceedings.


Gar-Con abandoned its challenge to the petitioners' standing at hearing. (T. 255) In its proposed recommended order, DER concedes standing or party status for the named petitioners only.

Each respondent filed proposed findings of fact, conclusions of law and recommended orders, and petitioners Patricia Cole-Blaha and Georges Blaha filed jointly their proposed recommended order. To the extent proposed findings of fact have not been adopted, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subsidiary.


ISSUE


Whether Gar-Con's revised application for a permit to construct a sewage plant, and soakage trenches to dispose of the effluent, should be granted?


FINDINGS OF FACT


  1. Eight to ten miles south of Melbourne Beach and 8.3 miles north of Sebastian Inlet, Gar-Con plans to develop a parcel of land stretching west from the Atlantic Ocean, across Highway A1A, to the Indian River. Gar-Con expects to build a motel and residential complex complete with tennis courts, parking garage, water treatment plant and the sewage treatment facility for which a construction permit is sought in these proceedings.


  2. The sewage treatment plant would be built on a site 480 feet west of Highway A1A and 90 feet south of Gar-Con's northern property line, at an elevation of 11 or 12 feet above mean sea level. Ocean Way Water and Sewer Association, Inc. is to be organized as a nonprofit corporation to own and operate the wastewater treatment facility. The Public Service Commission, through the director of its water and sewer treatment, has taken the position that the proposed "sewer system will fall within the exemption described in Section 367.022(7), Florida Statutes." DER's Composite Exhibit A.


    PACKAGE PLANT PROPOSED


  3. The facility Gar-Con proposes is designed to treat 100,000 gallons of sewage daily, which is the estimated "total flow" (T. 75) the sanitary engineer who designed the system anticipates from the development. Sewage generated by the development would flow to the plant, through a bar rack designed to remove rags and other large objects, and into aeration tanks where, over a 24 hour period, interaction with air and a biological mass would supply oxygen and cause the formation of biological floccules. The flocculant sewage would then move to a clarifier hopper. During its five hour stay there, solids which were not earlier segregated as the sewage moved over a weir into the clarifier, would be precipitated and removed.


  4. The clear, residual liquid would be pumped through one of two sand filters (each of which would also have granular activated carbon and be capable of filtering 100,000 gallons daily) into one of two chlorine contact chambers where a gas chlorinator would introduce chlorine for an hour. Under ordinary circumstances, the chlorinated effluent would then be pumped into one of two soakage trenches. The soakage trenches, each designed for use every other week, are to be gravel-filled ditches covered over first with felt paper, then with compacted fill. The gravel would lie at least one foot beneath the surface of the ground in a space ten feet wide and three feet deep stretching the 940 foot length of each soakage trench. Punctured like sieves, two six-inch PVC pipes would run through the gravel, sweating effluent from their pores.


  5. There is also a plan to dig a percolation pond or grassed swale five feet deep, 120 feet long and 80 feet wide near the wastewater treatment plant, which could serve as a receptacle for effluent, in case of "a 1:10 year storm or

    when the filters are down and/or if soakage trenches would need repair." Gar- Con's Exhibit 2-A. It would hold about 100,000 gallons.


  6. The solids caught by the weir, those extracted in the clarifying process, and those recovered from backwashing the filters would serve as catalyst for the aeration process as needed. Excess sludge, about 3,000 pounds monthly, would undergo "aerobic digestion," before being removed to Brevard County's Central Disposal Facility on Adamson Road, for disposal there. Gar- Con's Exhibit No. 7.


  7. Primary and secondary drinking water standards would be met by the effluent as it left the plant (although the engineer who designed the system would not drink the effluent himself), except that, from time to time, nitrate concentrations might reach 12 milligrams per liter, and except in the "event that a homeowner might put some type of [inorganic toxic or carcinogenic] material into the sewer system." (T. 86) The biological oxygen demand (BOD) would be ten milligrams per liter; suspended solids would probably amount to about five milligrams per liter; pH would probably be slightly under seven; nitrates would average approximately eight milligrams per liter but would "peak out at certain times during the year, for maybe extended periods up to two months, at twelve milligrams per liter," (T. 80); and there would be a chlorine residual after 60 minutes of two milligrams per liter.


    AMBIENT WATERS


  8. There would be no direct discharge to the Atlantic Ocean, Indian River or any other body of surface water, nor would any indirect effect on surface waters be measurable. No body of surface water lies within 500 feet of the site proposed for the plant and soakage trenches. Potable groundwater underlies the site; the groundwater table slopes toward the Atlantic Ocean, 9.5 to 12.5 feet below ground. "[D]uring the traditional rainy season," Gar-Con's Exhibit 2B, Attachment, p.3, the groundwater may rise to within seven feet of the surface. The PVC pipes in the soakage trenches are to be placed two and a half feet deep. As effluent percolated through the sandy soil, there would be "mounding" of the groundwater underneath the soakage trenches, and dispersal in all directions. Surface flow is to be diverted from the soakace trenches so that only rainwater falling directly on them would percolate down through the gravel beds. Taking soil characteristics into account, and assuming a "water table depth" of 20 feet, an engineer retained by Gar-Con predicted that "the maximum expected groundwater rises beneath the east and west trenches are 2.4 and 2.1 feet, respectively under a loading of 100,000 gpd for a period of 7 days." Gar-Con's Exhibit No. 3. The water table depth, "the height, the top of the groundwater from the first restrictive layer," (T. 172), is probably more like 40 feet than 20, which accounts in part for the "conservatism" of the mounding predictions.


  9. Under very severe weather conditions (a 100 year storm), groundwater would rise as high as the bottom of the trenches making them unavailable to receive effluent, but the effluent would not be forced above ground. In a 100 year flood, water would be expected to rise to seven feet above mean sea level. Under such conditions, people could be expected to evacuate the area. In a 25 year storm, the system could be expected to continue to function.


  10. Groundwater to the north and east of the proposed site was sampled, and the samples were analyzed. The water to the north had 380 milligrams of chlorides per liter and the water to the east had 450 milligrams of chlorides per liter. As it left the proposed treatment plant, the effluent would contain approximately 150 milligrams of chlorides per liter.

    SOUND AND LIGHT


  11. Lights like those used as street lights are to be installed at four places in the wastewater treatment plant. A timer, which can be overridden, would turn the lights on at dusk and off at eleven o'clock at night. The lights would illuminate the plant adequately.


  12. Pumps would move sewage to and through the proposed plant. Most of the pump motors would be submerged and unable to be heard. Two electric blowers, a flow meter and a totalizer would also have electrical motors. The blowers and the blower motors are to be equipped with insulated fiberglass covers and the blowers would also have intake and double outlet silencers. Four feet from the plant the noise of the motors would be comparable to that of a home air conditioning unit. At the nearest residence the noise level would scarcely exceed background noise.


  13. At hearing, Gar-Con revised its application and agreed to install an emergency generator which would also be encased in insulated housing and is to be equipped with a muffler.


    AEROSOL AND ODOR


  14. Unless the proposed plant loses electric power for 24 hours or longer, no offensive odors would emanate from it. The bar rack and weirs would be regularly hosed down. Against the possibility of a power failure, Gar-Con agreed at hearing to install permanently an emergency generator with sufficient capacity to keep both the wastewater treatment plant and the water treatment plant it plans to build operable. No aerosol drift is foreseen. The surface of the liquid In the aeration tanks would be 1.4 feet below the top of the rim. Walkways four feet wide along the inside perimeters of the aeration holding tanks would prevent dispersal of most of aerosol. A decorative hedge around the treatment plant, which would eventually be 15 feet high, is a final fail-safe.


    WELLS


  15. To the north are two shallow wells within 500 feet of the site proposed for the wastewater treatment plant. Both wells belong to Kel Fox, who wrote Gar-Con that he had no objection to their proposed wastewater treatment facility in light of Gar-Con's agreement to furnish drinking water to existing facilities on his property and reimburse him expenses incurred in disconnecting the two shallow wells. Gar-Con's Exhibit 2E. There is a deep well within 500 feet to the south. DER and Gar-Con have entered into the following stipulation, dated September 2, 1983:


    1. Existing Wells. Prior to the operation of its waste water treatment plant, Gar-Con will offer to supply drinking water at a reasonable cost to owners of property on which are located operational or approved shallow drinking water wells that are within 500 feet of Gar-Con's land application site. Gar-Con will make this offer to all such owners known to it prior to the operation of its plant.

      Gar-Con will further offer to provide reasonable compensation to such owners to disconnect their shallow wells. Gar-Con will

      endeavor to arrange for provision of drinking water to these owners and the disconnection of those wells prior to the operation of its plant.


    2. Future Wells. Should nearby individual (non-corporate) property owners propose to construct shallow drinking wells located within 500 feet of Gar-Con's land application site after Gar-Con begins operation of its waste water treatment plant, Gar-Con also will offer to supply them with drinking water at a reasonable cost and to provide reasonable

      compensation to them to disconnect those wells. However, Gar-Con shall have no obligation to make any such offer to owners of future wells if sampling of monitoring wells located at or near its external property line indicates that the groundwater meets the primary drinking water standards and, after July 1, 1985, the secondary drinking water standards listed in Florida Administrative Code Rule 17-22.104.


    3. Gar-Con agrees to record a master notice of restriction barring future owners of lots within the Ocean Way development, which are owned by Car-Con at the time of permit issuance, from installing shallow drinking water wells on such property or otherwise using the shallow aquifer beneath their property as a source for irrigation or for potable water, so long as use of the proposed sewage disposal system continues, and the Department has not found that this restriction is unnecessary. This restriction, which shall be a covenant running with the land, further shall require future owners to purchase water from Gar-Con or any successor owner of the development's water system if Gar-Con or the successor provides water service. These restrictions also shall be contained in all other appropriate documents of title. In addition, Gar-Con plans to create a non-profit water and sewer association to own and control the development's water and sewer system.

      Gar-Con will include in the Articles of Incorporation of this association a requirement that all property owners served by the system must be members of the Association.


      1. Gar-Con is entitled to a zone of discharge extending to its current property line with the exception that the zone of discharge shall not include the area contained within a 100' radius of Gar-Cons's proposed water supply wells.

      2. DER Staff concurs that the above conditions, in conjunction with the sewage treatment and disposal system and the groundwater monitoring program proposed by the applicant, to meet the requirements of Chapter 17-4, F.A.C. will provide reasonable assurance that existing and future off-site and on-site property owners will be protected from any adverse effects that might result from the operation of the proposed sewage treatment disposal system.


      Petitioner's Exhibit No. 10.


      There are to be a half dozen monitoring wells to allow sampling of the groundwater at strategic points in the shallow aquifer.


      NATURAL RESOURCES


  16. Turtles nest in the general vicinity but off the site of the proposed project. Construction and operation of the proposed waste water treatment facility would have no impact on the turtles apart from making it possible for more people to live closer to where they nest.


    CONCLUSIONS OF LAW


  17. No evidence was adduced to show that the objecting petitioners had standing or party status in these proceedings. After the named petitioners had made various representations at hearing, however, respondents abandoned all challenges to their standing. Gar-Con's counsel did so explicitly at hearing and DER's proposed recommended order conceded standing to the named petitioners. With respect to named petitioners who filed later than fourteen days after notice, the respondents' proposed orders amount to abandonment of the challenge to the petitioners' participation, a challenge that had been raised in earlier pleadings.


  18. No objector seeking to participate at hearing was precluded from doing so on account of having been misled by the notice Gar-Con caused to be published. It has been unnecessary, therefore, to reach the question of the adequacy of the description of the project's location in the notice the was published in the TODAY newspaper.


  19. The mere filing of a petition by an objector does not serve to put an applicant far a DER permit to its proof on any and all aspects of the application.


    The petitioner must identify the areas of controversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the "reasonable assurances" burden case upon the applicant. The "burden of proof" is upon the petitioner to go forward with evidence to prove the truth of the facts asserted in his petition. If the petitioner fails to present evidence, or fails to carry the burden of proof as to the controverted facts

    asserted--assuming that the applicant's preliminary showing before the hearing officer warrants a finding of "reasonable assurances"

    --then the permit must be approved. In making this preliminary showing of "reasonable assurances" before the hearing officer, the applicant is required to provide credible and credited evidence of his entitlement to the permit. This having been done, the hearing officer would not be authorized to deny the permit unless contrary evidence of equivalent

    quality is presented by the opponent of the permit.


    Florida Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981)

    (footnote omitted)


    The objectors' pleadings indicated several "areas of controversy," 396 So.2d at 789, in the present case.


  20. The objectors pleaded that the project would "affect the groundwater"; that, as originally planned, a soakage trench would come within 100 feet of a shallow well in violation of Rule 17-6.040(4)(q), Florida Administrative Code; that "package plants. . .are prone to upsets"; and expressed concern "with the development's effect on the Indian River. . .and on the public beach," with "noise and odors" and with "lighting and aerosol drift"; and the adequacy of the plant to treat the volume of sewage the projected population would generate was questioned. Other complaints were obviated by changes in the application or fell outside DER's jurisdiction.


  21. Petitioners put on no evidence on any issue. The burden rests, nevertheless, on Gar-Con, "to provide credible and credited evidence of. .

    .entitlement to the permit." 396 So.2d at 789, within the "areas of controversy," id., identified by appropriate pleading in the objectors'


  22. The mere filing of a petition by an objector does not serve to put an applicant for a DER permit to its proof on any and all aspects of the application.


    The petitioner must identify the areas of controversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the "reasonable assurances" burden case upon the applicant. The "burden of proof" is upon the petitioner to go forward with evidence to prove the truth of the facts asserted in his petition. If the petitioner fails to present evidence, or fails to carry the burden of proof as to the controverted facts asserted-- assuming that the applicant's preliminary showing before the hearing officer warrants a finding of "reasonable assurances"--then the permit must be approved. In making this preliminary showing of "reasonable assurances" before the hearing officer, the applicant is required to provide credible and credited

    evidence of his entitlement to the permit. This having been done, the hearing officer would not be authorized to deny the permit unless contrary evidence of equivalent quality is presented by the opponent of the permit.


    Florida Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981)

    (footnote omitted)


    The objectors' pleadings indicated several "areas of controversy," 396 So.2d at 789, in the present case.


  23. The objectors pleaded that the project would "affect the groundwater"; that, as originally planned, a soakage trench would come within 100 feet of a shallow well in violation of Rule 17-6.040(4)(q), Florida Administrative Code; that "package plants. . .are prone to upsets"; and expressed concern "with the development's effect on the Indian River. . .and on the public beach," with "noise and odors" and with "lighting and aerosol drift"; and the adequacy of the plant to treat the volume of sewage the projected population would generate was questioned. Other complaints were obviated by changes in the application or fell outside DER's jurisdiction.


  24. Petitioners put on no evidence on any issue. The burden rests, nevertheless, on Gar-Con, "to provide credible and credited evidence or entitlement to the permit," 396 So.2d at 789, within the "areas of controversy," id., identified by appropriate pleading in the objectors'*


* NOTE: The remaining text is unavailable at the Division and therefore not a part of this ACCESS document.


DONE and ENTERED this 14th day of October, 1983, in Tallahassee, Florida.


ROBERT T. BENTON, II

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 14th day of October, 1983.


COPIES FURNISHED:


Hubert C. Normile, Jr., Esquire Storms, Krasny, Normile,

Dettmer & Gillin, P.A.

482 North Harbor City Blvd. Melbourne, Florida 32935

William H. Green, Esquire Richard S. Brightman, Esquire Post Office Box 6526 Tallahassee, Florida 32314


J. Alan Cox, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301


Harry and Lillian

133 Pelican Drive Melbourne Shores,

Siegel


Florida


32951

Lita Baginak

124 Pelican Drive Melbourne Shores,


Florida


32951


Mary Channing

109 Pelican Drive

Melbourne Shores,


Florida


32951


Joseph T. Ackman 6020 Riverside Drive

Melbourne Shores, Florida 32951


Mr. and Mrs. R. Burke

138 Cardinal Drive

Melbourne Shores, Florida 32951


Mr. and Mrs. Ray Gesgmon

265 Cardinal Drive

Melbourne Shores, Florida 32951


Mr. and Mrs. Elmore Jadricks

280 Cardinal Drive

Melbourne Shores, Florida 32951


Mary G. Keizer

6040 Riverside Drive

Melbourne Shores, Florida 32951


John and Gail McDavid

315 Pelican Drive

Melbourne Shores, Florida 32951


Frank and Catherine Hatton

299 Ibis Drive

Melbourne Shores, Florida 32951


Mr. and Mrs. Ben Parck 5895 Riverside Drive

Melbourne Shores, Florida 32951

Steve Mills, Jr. and Amie Lou Miller

280 Heron Drive

Melbourne Shores, Florida 32951


E. L. and Janie P. Anthony

230 Albis Drive

165 Flamingo Drive Melbourne Shores, Florida


32951

James B. Lyons

275 Flamingo Drive Melbourne Shores, Florida


32951

Patricia Cole-Blaha and Georges Blaha

280 Flamingo Drive Melbourne Shores, Florida


32951

S. G. Doughty 5535 South A1A

Melbourne Beach, Florida


32951

Arthur Lilyenthol

150 Sea Dunes Drive

Melbourne Beach, Florida


32951

Melbourne Shores, Florida 32951 Victor T. and Betty I. Williams


John Garay

Garcon Development, Inc.

3910 Washington Avenue, Suite 109

Titusville, Florida 32780


Shirley and Stan Parr

205 Heron Drive

Melbourne Beach, Florida 32951


Florence R. Patterson

180 Heron Drive

Melbourne Beach, Florida 32951


Victor H. and Louis V. Bitter

145 Heron Drive

Melbourne Shores,


Grace Losorda

Florida

32951

150 Ibis Drive Melbourne Shores,


Florida


32951

P. Malinowski

175 Ibis Drive

Melbourne Shores,


Florida


32951

William P. and Thekla Tudor

245 Flamingo Drive

Melbourne Shores, Florida 32951


C. R. Embray

295 Flamingo Drive

Melbourne Shores, Florida 32951


Madolyn B. and Carroll P. Denning

250 Flamingo Drive

Melbourne Beach, Florida 32951


Arthur Henderson

10 Casseekee Trail

Melbourne Beach, Florida 32951


Mr. and Mrs. V. V. Johnson

140 Sea Dunes Drive

Melbourne Beach, Florida 32951


Harlison Millie Dyyson

320 Pelican Drive

Melbourne Shores, Florida 32935


Cathy and Harry Kirkland

121 Pelican drive

Melbourne Shores, Florida 32935


Marie McMiehall

99 Pelican Drive

Melbourne shores, Florida 32935


Mr. and Mr. N. J. Dryton

137 Cardinal Drive

Melbourne Shores, Florida 32935


Bevel Williams, Jr., and Beth Williams

250 Cardinal Drive

Melbourne Shores, Florida 32935


Kurt and Nancy

300 Cardinal Drive

Melbourne Shores, Florida 32935


Nancie S. and Charles LaRue 6020 Riverside drive

Melbourne Shores, Florida 32935


Wayne Chase and Rev. Thella Ch

295 Pelican drive

Melbourne Shores, Florida 32935


Lawrence T. Baldwin

240 Cardinal Drive

Melbourne Shores, Florida 32935

Ruth E. and C. P. Ashton 5990 Riverside Drive

Melbourne Shores, Florida 32935


Vera and Al Qualitza

300 Heron Drive

Melbourne Shores, Florida 32935


Ann G. Haupt

284 Heron Drive

Melbourne Shores, Florida 32935


Elaine Gardner Pearl Pattingill

175 Heron Drive

Melbourne Shores, Florida 32935


Alfred Beauman

165 Heron Drive

Melbourne Shores, Florida 32935


Nylic Rodfore

130 Heron Drive

Melbourne Shores, Florida 32935


Robert Schuler

170 Ibis Drive

Melbourne Shores, Florida 32935


Robert Dayton

President, Homeowners Assoc. 1250 South Harbor City Blvd. Melbourne, Florida 32901


Theodore & Charlene Carey 5585 Hwy. A1A

Melbourne Shores, Florida 32935


Miles & Mary Riley 5835 South A1A

Melbourne Shores, Florida 32935


Dean & Emily Lincoln

290 Flamingo Drive

Melbourne Shores, Florida 32935


William A. Cantey and Sylvia D. Cantey

5975 Riverside Drive

Melbourne Shores, Florida 32935

Victoria Tschinkel, Secretary Department of Environmental

Regulation

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


================================================================= AGENCY FINAL ORDER

=================================================================


STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION



MILES REILEY, MARY REILEY, THEODORE CAREY, CHARLENE CAREY, ROBERT J. DAYTON, GEORGES BLAHA and PATRICIA COLE-BLAHA, et al.,

DOAH CASE NO. 83-694

Petitioners, OGC CASE NO. 83-


GAR-CON DEVELOPMENT, INC., and STATE OF FLORIDA DEVELOPMENT OF ENVIRONMENTAL REGULATION,


Respondents.

/


FINAL ORDER


On October 14, 1983, the Division of Administrative Hearing's hearing officer in the above-styled hearing submitted his Recommended Order to me. A copy of that order is attached as Exhibit A. Pursuant to Florida Administrative Code Rule 17-1.68(1) all parties to the proceeding were allowed ten (10) days in which to file exceptions to the Recommended Order. Respondent Gar-Con Development, Inc. (Gar-Con) filed Respondent's Exception to the Recommended Order and Proposed Final Order, copies of which are attached as Exhibits B and C, respectively.


RULING ON EXCEPTION


Gar-Con takes exception to the hearing officer's conclusion of law that the record was "problematic as regards the location of shallow wells within 500 feet of the project site." The hearing officer noted testimony in the record regarding the requirement of a five hundred foot buffer zone between an effluent disposal system and a shallow well. Based on an agreement between Gar-Con and the department, however, the hearing officer recommended issuance of the permit for the wastewater treatment plant.


The agreement, which is quoted extensively in the Recommended Order, requires Gar-Con to provide a source of drinking water to property owners whose existing wells are within five hundred feet of the land application site and to

meet the same obligation to owners who proposed to construct drinking water wells in the future if sampling at required monitoring wells indicates that primary and secondary drinking water standards are not being met.


In its exception Gar-Con points out that the record supports a finding that the buffer zone required by department rules only applies to shallow drinking water wells. Since its agreement with the department requires it to provide an alternative drinking water source for owners of existing drinking water wells closer than five hundred feet from the site, Gar-Con objects to any suggestion that the department's regulations would not be met.


While it appears from the Recommended Order that the hearing officer did recognize that the agreement between Gar-Con and the department was sufficient to provide reasonable assurances that applicable' rules would be complied with, I would note for the sake of clarity that such is the case.


Accordingly, having considered the record end pleadings in this case, it is ORDERED that,

  1. The hearing officer's findings of fact and conclusions of law, as clarified herein, are adopted in toto.


  2. Within 14 days of entry of this order, the department shall issue a permit to construct a wastewater treatment plant to Gar-Con with appropriate conditions, including installation of an auxiliary generator.


DONE AND ENTERED this 17th day of November, 1983.


VICTORIA J. TSCHINKEL, Secretary STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL REGULATION

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

Telephone: (904) 488-9730


Docket for Case No: 83-000694
Issue Date Proceedings
Dec. 05, 1983 Final Order filed.
Oct. 14, 1983 Recommended Order sent out. CASE CLOSED.

Orders for Case No: 83-000694
Issue Date Document Summary
Nov. 17, 1983 Agency Final Order
Oct. 14, 1983 Recommended Order Grant permit to Respondent to construct wastewater treatment facility. Even when the Petitioners doesn't put on case, burden of proof is on Respondent.
Source:  Florida - Division of Administrative Hearings

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