STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

R-BAR ESTATES, INC., et al., )

)

Petitioners, )

)

vs. ) CASE NO. 84-1277

) CITY OF OKEECHOBEE and STATE OF ) FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case on May 24, 1984, in Okeechobee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioners: Robert V. Kennedy, Esquire

Post Office Box 968 Okeechobee, Florida 33472

For Respondent, Lester W. Jennings, Esquire City of Post Office Box 237 Okeechobee: Okeechobee, Florida

For Respondent,

Department of E. Gary Early, Esquire Environmental 2600 Blairstone Road, Suite 654 Regulation: Tallahassee, Florida 32301

The issue is whether the Respondent City of Okeechobee (City) should receive a permit to construct a sewage treatment plant for treatment of domestic waste for the City of Okeechobee.

The Petitioners presented four witnesses: William Richard Opp, James Branham, Oakland Chapman, and Alan Goldstein. Petitioners also presented three Exhibits. Respondent City of Okeechobee presented the testimony of five witnesses: James Broome, L. C. Fortner, Jr., Richard Fellows, Dr. Lewis H. Motz, and Paul Phillips. The City also presented five Exhibits. Respondent, Department of Environmental Regulation (DER) submitted three Exhibits.

Petitioners were granted leave to file a late deposition no later than seven days from the date of the hearing. That deposition was not filed and the record was therefore closed.

The parties were given an opportunity to file proposed findings of fact and conclusions of law as permitted by the Statutes. Only DER filed such a Proposed

Order within 15 days from the date of the hearing as agreed. The proposed bindings of fact and conclusions of law contained therein have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions, and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. Respondent City of Okeechobee (City) has applied to the Department of Environmental Regulation (Department) for a permit to construct a 0.6 mgd sewage treatment plant with land spraying as the method for effluent disposal. The facility will be used to provide secondary treatment of domestic waste for the City of Okeechobee.

   
   

2. The location of the facility site will be north of the City of Okeechobee on Cemetary Road. It will be adjacent to R- Bar Estates, a residential subdivision, and the Florida School for Boys. This site is a suitable land site for the facility. Analysis of other sites has not produced a better site for the project.

   
   

3. The waste material will be introduced into the plant where some solids will be removed. The wastewater will then move into the treatment tanks where bacteria will assimilate the nutrients. With secondary treatment, approximately

   90 percent of the nutrients will be removed. The treated wastewater will then be disinfected with chlorine so as to maintain a chlorine residual of 0.5 ppm. The chlorination should destroy most if not all of the bacteria in the effluent.

   
   

4. The method of treatment described above is a standard method. The design of the plant itself is quite common and, with the changes recommended by the Department, should be simple to maintain and should provide an acceptable level of treatment. If the plant is operated properly, the wastewater will meet all Department standards for secondary sewage treatment. Petitioner introduced no evidence at the hearing to establish that the plant itself could not be properly constructed or that the plant could not meet treatment levels.

   
   

5. There are no noises or lighting at the plant which would carry to any residential areas. The plant itself is well removed from R-Bar Estates. While the sprayfields are located near R-Bar Estates, the only noise associated with the effluent disposal will be that of the small electric motor used to move the spray bars.

   
   

6. The entire site will be enclosed by a fence so as to restrict access.

   
   

7. The facility has been provided with a flow meter and with raw wastewater and finished effluent taps.

   
   

8. The treated effluent from the plant is to be disposed of on sprayfields adjacent to the facility. Combined area of the sprayfields will be 310 acres. The sprayfield area consists of seven separate sprayfields. Each sprayfield will receive 1/2 inch of effluent per week, with each field receiving effluent one day per week.

   
   

9. Prior to disposal of effluent, the entire site will be graded so as to eliminate low areas. Elimination of low areas on the site will reduce the possibility of effluent ponding on the site.

10. The entire area of the sprayfield will be surrounded by a dike. The dike will prevent any surface waters or effluent from leaving the site. There will be no contamination of any waters from surface water runoff from the site.

    
    

11. The facility has the capacity to store effluent for 90 days in the event of an unusually wet rainy season. That capacity allows the plant to retain all effluent for 90 days without any discharge in the event the sprayfields become saturated.

    
    

12. The size of the pond may allow for some mosquito propagation but no mosquito problem is anticipated if the project is done properly and maintained. Mosquito propagation in holding ponds does occur in Florida. However, in every holding pond in which mosquito propagation has become a problem, it has been controlled by proven management techniques. The most common method of eliminating areas for mosquito propagation is to keep the side slopes of the pond free from vegetation. However, if that is not effective, adequate control may be achieved by use of chemical larvicides. In a pond of this size, chemical use is not as practical, but nonetheless remains as an alternative. The City of Okeechobee already owns the machinery necessary to mow around the perimeter of the pond.

    
    

13. The holding pond area includes a separate pond which will accept effluent during times in which the plant upsets. During an upset, hydraulic or other factors may result in the plant producing inadequately treated effluent. That inadequately treated effluent will be pumped back to the head of the plant for further treatment.

    
    

14. During the treatment process, ozone will be injected into the raw sewage. Ozone serves to reduce the smell of the sewage. Between the ozone treatment and the treatment at the plant, the finished effluent should have a very slight and innocuous odor.

    
    

15. The application of effluent shall be accomplished by two methods. In four fields, effluent will be sprayed by an irrigator which moves in a circle from a central pivot. The effluent is sprayed down to the ground, thereby eliminating potential for aerosol drift. In the three fields furthest from inhabited areas, effluent is sprayed by a rolling unit which is pulled across the sprayfield. Trees and other vegetation at the property boundaries will eliminate any aerosol drift which may occur.

    
    

16. There is a buffer of 200 feet from the edge of the sprayfield to the property boundary. It is in excess of 400 feet from the edge of the sprayfield to the nearest drinking water well. This distance should be adequate to keep any contaminants from reaching wells offsite. The nearest wells are all fully encased wells at approximately 100 feet or greater in depth. The plant described in the application and drawings is designed to provide Class I reliability pursuant to Florida Administrative Code Rule 17-6.040(4)(m).

    
    

17. The primary constituents of the effluent will be water, nitrogen and phosphorus. Vegetation utilizes nitrogen and phosphorus in its growth process. When treated effluent is sprayed on a field, much of the nutrients remaining after treatment are assimilated by vegetation on the fields. Therefore the vegetation provides additional treatment for effluent beyond that provided in the plant. The types of vegetation to be grown in the Okeechobee sprayfields are Pangola grass and rye grass. Pangola grass, which is recommended for the area by the Soil Conservation Service, is a commercially valuable hay.

    Okeechobee intends to have a person contract with the City to harvest the hay four times per year. During the winter, when Pangola grass is dormant, rye grass will be planted and utilized to provide the same treatment.

    
    

18. The facility will be surrounded by a series of monitoring wells which will allow early detection of contaminants leaving the property boundary. The wells will measure upstream and downstream groundwater.

    
    

19. Nitrogen and phosphorus are not health related components of effluent. They are nutrient related standards and must exist in extremely high concentrations to have a health risk. However, if the monitoring wells pick up levels of nitrogen or phosphorus leaving the site boundary, a fund has been established for the construction of water mains to R-Bar Estates to provide residents of the area with city water. An adequate water supply to R-Bar Estates is assured.

    
    

20. The soils in the project area consist of Myakka and Imokolee fine sand with pockets of other fine sands. An organic pan exists at elevations from 24 to 35 inches below the surface. The organic pan acts as a semi-confining layer. The permeability rate of the sands is approximately 12 feet per day. The organic layer rate is from 4 to 12 feet per day. As a part of the site preparation, the organic layer will be deep plowed to break up the layer and allow for a greater permeability rate. The permeability of the shallow water table is approximately 2 feet per day, and for purposes of doing calculations, in DER Exhibit 2, a rate of 2 feet per day was used. Based on all available data, the soils and vegetation at the site should be more than capable of assimilating and fixing the nitrogen and phosphorus load from the effluent. There is little or no risk of contamination of water sources off-site, including Taylor Creek.

    
    

21. The City of Okeechobee has agreed to obtain a $3,000,00c policy of pollution insurance protecting against pollution of drinking water wells resulting from construction of the proposed wastewater treatment facility, and the City has the authority to obtain the insurance.

    
    

22. There is no reverter clause in a deed from Okeechobee County to the State of Florida that would effect the use of the proposed site as a wastewater treatment facility.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

24. The authority of the Department of Environmental Regulation to regulate the construction of the subject facility is derived from Chapter 403, Florida Statutes and Florida Administrative Code Rules 17-4 and 17-6.

    
    

25. The facility proposed for construction by the City of Okeechobee provides for secondary waste treatment, thereby complying with Section 403.086, Florida Statutes (1983). Further, as authorized in Chapter 403, the Department has promulgated rules concerning the construction of new waste-water treatment facilities. Those rules are contained in Chapter 17-6, Florida Administrative

    Code and the Florida Department of Environmental Regulation manual, Land Application of Domestic Wastewater Effluent Florida, as promulgated and made a part of these rules in Rule 17-6.040(4)(q). As concerning the construction of new wastewater treatment facility, Rule 17-6.070 states in pertinent part:

    
    

    1. General

       (a) New wastewater treatment plants and modifications of existing plants shall be designed in accordance with sound engineering practice. General technical guidance is provided by references listed under Section 17-6.040.

       * * *

    2. Plant Sites

       1. New treatment plants and modifications to existing plants shall be designed and located on the site so as to minimize adverse effects resulting from odors, noise, aerosol drift and lighting. All such design control measures shall be described in the engineering report. The permittee shall give reasonable assurance that the treatment plant or modifications to an existing plant shall not cause odor, noise, aerosol drift or lighting in such

          amounts or at such levels that they adversely affect neighboring residents, in commercial or residential areas, so as to be potentially harmful or injurious to human health or welfare or unreasonably interfere with the enjoyment of life or property, including outdoor recreation. Reasonable assurance may be based on such means as aeration, landscaping, treatment of vented gases, buffer zones owned or under the control of the permittee, chemical additions, prechlorination, ozonation, innovative structural design or other similar techniques and methods, as may be required. The design shall include adequate aeration.

       2. All treatment plant sites shall be enclosed with a fence or otherwise designed with appropriate features that discourage the entry of animals and unauthorized persons.

       
       

26. The facts related above indicate that the method of treatment selected is a proven treatment process which would allow the plant to meet required effluent limitations. The plant has the storage capacity to completely retain effluent in the event unforeseen events cause less than adequate wastewater treatment. The design is proven and relatively common. Therefore, maintenance and monitoring should be easily achievable. For these reasons it is concluded that the requirements of Rule 17-6.070(1) have been met in this case.

    
    

27. In light of the foregoing facts, it is clear that the City of Okeechobee has provided the Department with reasonable assurances that odor, noise, aerosol drift or lighting will not be harmful or injurious to human health or welfare or unreasonably interfere with the enjoyment of life or

property. The plant has been located on the site so that the noise or lighting should cause no problem offsite. The effluent will be treated with ozone prior to treatment thereby reducing the potential for odor. The method of irrigation is such that aerosol drift would be contained and vegetation is being preserved at the property boundary which will assist in controlling any aerosol drift which may occur. It is therefore concluded that the requirements of Rule 17- 6.070(2)(a) have been met. Additionally, the provisions of Rule 17-6.070(2)(b) have been met in that it has been found that the treatment plant site is to be enclosed with a fence.

1. It is further concluded that all remaining applicable portions of Rule 17-6.070 have been met in light of the foregoing facts.

   
   

2. As relevant to this case, Rule 17-6.080(3) set forth standards in the disposal of effluent by land application. In light of the facts set forth above, it is concluded that the proposed treatment system meets all applicable requirements contained in Land Application of Domestic Wastewater Effluent in Florida as adopted in Section 17-6.040(4)(q). Additionally, the waste treatment requirements of Rule 17-6.080(3)(c) have been met and the groundwater quality has been adequately protected as required in Rule 17-6.080(3)(d).

   
   

3. In Summary, it is concluded that the proposed construction of this wastewater treatment facility meets all the criteria and standards set forth in Chapter 403, Florida Statutes (1983), and the applicable rules of Chapter 17-6, Florida Administrative Code.

   
   

4. The applicant has the burden of providing reasonable assurances that its proposed facility will not result in pollution in contravention of the Department rules or regulations. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 78 (Fla. 1st. DCA 1981); Rules 17-1.59 and 17-4.07(1), Florida Administrative Code. It has been concluded that the applicant in this proceeding has established by a preponderance of evidence that its proposed treatment facility will not result in contravention of the applicable statutes and rules and will not violate any of the Department specific standards. In objecting to the issuance of the permit, the Petitioners alleged several deficiencies or concerns not specifically set forth in the Department statutes or rules. For example, Petitioners argued that a more suitable location is available for the treatment facility, that the treatment facility design does not contemplate future growth, that the property values and quality of life will be reduced by the proposed facility, that the construction is underfinanced, that the City has not provided adequate insurance against pollution, and that the proposed site is the subject of a reverter clause to the State of Florida which clouds the title of the City. It is specifically noted that Petitioners failed to carry the burden of putting on evidence to support these alleged deficiencies. For example, there is no evidence presented that a more suitable location exists, that future growth cannot be accommodated by this facility, that inadequate financing exists to carry out the construction, or that the quality of life would be reduced. Additionally, insufficient evidence was presented upon which a finding could be based regarding loss in property values. It is therefore concluded that, while the applicant in this proceeding has established by a preponderance of the evidence that the proposed plant will meet all standards for issuance of the permit, the Petitioners have failed to present evidence in support of their allegations of deficiencies. As pointed out in Florida Department of Transportation v. J.W.C. Company Inc., supra, although the applicant for a permit has the burden of proof in hearings where the application is contested, the Petitioner challenging the inssuance of the permit 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 . . . burden cast upon the applicant. This the Petitioners have wholly failed to do.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting a permit to the City of Okeechobee to construct the wastewater treatment facility as proposed.

DONE and ENTERED this 27th day of June, 1984, in Tallahassee, Florida.

DIANE K. KIESLING

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 27th day of June, 1984.

COPIES FURNISHED:

Robert v. Kennedy, Esquire Post Office Box 968 Okeechobee, Florida 33472

Lester W. Jennings, Esquire Post Office Box 237 Okeechobee, Florida

E. Gary Early, Esquire

Department of Environmental Regulation 2600 Blairstone Road, Suite 654

Tallahassee, Florida 32301

Docket for Case No: 84-001277

Orders for Case No: 84-001277