STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH WATERFRONT PARK )

HOMEOWNERS ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NOS. 84-4230

) 84-4244

DEPARTMENT OF ENVIRONMENTAL ) REGULATION (DER) and HACIENDA DEL RIO, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing on April 18, 1985, in Sanford, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner William Clay Henderson, Esquire Edward Goodrich, HENDERSON and HENDERSON, P.A. et al.: Post Office Box 1840

New Smyrna Beach, Florida 32070

For Respondent B. J. Owens, Esquire

DER: Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32301

For Respondent Betty J. Steffens, Esquire Hacienda Del Rio NABORS, GIBLIN and STEFFENS, P.A.

102 South Monroe Street Tallahassee, Florida 32301

This matter arose on Petitioner's objection to Hacienda Del Rio's (HDR) application for a permit to construct a wastewater treatment plant and effluent disposal system. A motion to dismiss the petition in Case No. 84-4230 was granted, with leave to refile said petition by March 25, 1985. The petition was not refiled and South Waterfront Park Homeowners Association did not participate further in these proceedings.

The parties submitted proposed findings of fact pursuant to Subsection 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly herein, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Respondent HDR has applied to DER for a permit to construct a 60,000 gallon per day extended aeration sewage treatment plant with percolation ponds.

   The facility would be used to provide secondary treatment of domestic waste from the HDR Mobile Home Park. The project is in Volusia County south of the City of Oak Hill and north of the Town of Edgewater. It is bounded on the east side by the Indian River and the west side by U.S. Highway One. The mobile home project site consists of approximately 156 acres, with the proposed wastewater treatment plant located in the southwest corner of the tract.

   
   

2. HDR submitted Application No. 85433 to DER on July 2, 1984, requesting a permit to construct a 0.6 MGD extended aeration sewage treatment plant and associated percolation ponds for the mobile home project. Supplemental information was filed with DER on August 29, 1984. DER issued a notice of intent to permit the project on November 8, 1984. The plant would provide secondary treatment of effluent with a minimum of 90 percent removal of BOD's and suspended solids through aeration, settling and chlorination processes.

   
   

3. The system is designed to collect sewage through a gravity system and lift station. The lift station dumps the sewage into the aeration chambers where forced air is mixed with the sewage, resulting in removal of organic materials and solids. The dissolved solids are then separated in the settling tank. From the settling tank, clear effluent enters the chlorine contact chamber where chlorine disinfectant is added prior to discharge into the percolation pond.

   
   

4. The method of treatment described above and the design of the plant are standard. If the plant is operated properly, the wastewater will meet all DER criteria for secondary sewage treatment.

   
   

5. Plant odor will be minimized by the continual feed of forced air into the system. Silencers will be installed on blowers to minimize any adverse noise effects from the blowers' operation. Aerosol drift is not a factor with the design of this plant. Security lighting will be provided, and the plant site will be surrounded by a six foot security fence. The design provides for effluent sampling access points and there will be a flow meter for measuring effluent discharge on site. A Class C operator will be required to operate the plant.

   
   

6. Disposal of the 90 percent treated effluent will be made into two percolation ponds. The ponds will be alternately loaded, with one pond being loaded for seven days and then resting seven days. The total surface area for the two ponds is approximately 130,000 square feet. The ponds are designed with berms of three feet with an emergency overflow one foot from the top of each berm. The two ponds together are designed to handle 200,000 gallons per day which would be the ultimate build out of this project. However, the maximum capacity of the initial phase of the wastewater treatment plant would be 60,000 gallons a day. Any expansion to the sewage treatment plant would require a separate permit.

   
   

7. The overall elevation of the area where the ponds are to be located is approximately 14 feet above sea level. Each pond is designed so that the pond bottom is two feet above the underground water table level measured at the highest point for the rainy season. In a 100 year flood, it is expected that the effluent and water can be absorbed without an overflow. The mobile home park has a storm retention system in which any theoretical overflow would be caught.

   
   

8. The soil type at the location of the percolation ponds consists of several layers of sands. This type of soil has good permeability in that it

   provides a good transfer of water through the soil and is therefore suitable for siting of the percolation ponds. Pond design is conservative in that the hydraulic loading rate has a safety factor of at least 300 percent.

   
   

9. Once the effluent has percolated into the ponds, the discharge will meet or exceed the level of quality of the G-2 ground water within the 100 foot zone of discharge. The design of the wastewater treatment plant also includes sufficient monitoring wells and provides for adequate buffer zones from residences and drainage ditches. No surface waters of the state are located within 500 feet of the sewage treatment plant or its percolation ponds. The Indian River, which is adjacent to the Hacienda Del Rio project, is approximately 2,500 feet from the sewage treatment plant. There will be no direct discharge by the sewage treatment plant into this body of water or any surface waters, nor would any indirect effect on surface waters be measurable.

   
   

10. Shellfish harvesting is a local industry. The waters of the Indian River immediately east of the Hacienda Del Rio property are designated Class II waters suitable for shellfish harvesting. The Indian River is also part of the Canaveral National Seashore Waters, which are designated as Outstanding Florida Waters. Concern was expressed that additional growth in the area might contribute to degradation of these Class II waters. There was, however, no evidence to indicate that the construction or implementation of the wastewater treatment plant by HCD would degrade ore pollute the Indian River (which is both Class II and Outstanding Florida Water) or any other State of Florida surface waters. It should be noted that waters north and south of the property in the Indian River are closed to shellfish harvesting, apparently due to pollution.

    
    

11. The Town of Edgewater north of the Hacienda Del Rio project has a secondary wastewater treatment plant which discharges its effluent directly into the Indian River. The City of Oak Hill to the south of the project has no wastewater treatment plant whatsoever. Individual businesses and homes utilize septic tanks, which can cause pollution to the Indian River through seepage.

    The HDR sewage treatment plant would thus meet higher standards than neighboring community facilities.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 403.086(1), Florida Statutes (F.S.) mandates that secondary waste treatment be provided in new waste treatment facilities. Rule 17- 6.070(1), Florida Administrative Code (F.A.C.) requires that new plants be designed in accordance with sound engineering practice." HDR demonstrated that it has designed a facility which meets these standards. There was no evidence presented to suggest otherwise.

    
    

    13. Rule 17-6.070(2), F.A.C. provides:

    
    

    1. 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 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.

       
       

       14. HDR has provided ample evidence that its facility will comply with the above provisions, and there was no evidence presented to the contrary.

       
       

       1. Rule 17-6.080(3), F.A.C. concerning disposal of effluent by land application, and Rule 17-6.060, F.A.C. regarding effluent limitations are also applicable. HDR and DER have demonstrated that the requirements and technical standards of these provisions will be met by the planned facility.

          
          

       2. Petitioner's challenge to the application rests on the theory that the impact of this treatment facility, the associated mobile home park and other area development will have an adverse affect on adjacent waters.

          
          

       3. Section 17-3.041(1), F.A.C. provides that:

       
       

       It shall be the Department policy to afford the highest protection to Outstanding Florida Waters (a complete listing of which is provided in subsection (4) which generally include the following surface waters:

       1. Waters within National Seashores . . . [listed in subsection 4(g) as Canaveral National Seashore in Brevard/Volusia Counties]

       2. Waters in Aquatic Preserves created under the provisions of Chapter 258, Florida Statutes. . .

       [listed in subsection 4(h) as Mosquito Lagoon Aquatic Preserve in Volusia/Brevard Counties]

       
       

       1. The Mosquito Lagoon Aquatic Preserve is described in Section 258.39(5), F.S. and Section 16Q-20.02(6), F.A.C. The Canaveral National Seashore is established by Public Law 93-626. Petitioner's evidence established that the Preserve and Seashore are contiguous to the parcel on which HDR's wastewater treatment plant would be located.

       2. Rule 17-4.24, F.A.C. provides standards which must be applied to evaluation of applications such as this when the proposed stationary installation would significantly degrade Outstanding Florida Waters alone or in combination with other stationary installations. Here, it was demonstrated that virtually all discharge from the facility will remain on site, and that it is approximately one half mile to the Outstanding Waters at issue. Thus, there will be essentially no impact as a result of the proposed wastewater treatment plant.

          
          

       3. Section 16Q-20.01(2) provides:

       
       

       The aquatic preserves which are described in Sections 258.39, 258.391, and 258.392, Fl.

       Stat., and in 16Q-20.01, Fl. Adm. Code, were established for the purpose of being preserved in essentially natural or existing condition so that their aesthetic, biological, and scientific values may endure for the enjoyment of future generations.

    2. the preserve shall be administered and managed in accordance with the following goals:

* * *

1. to encourage the protection, enhancement, or restoration of biological, aesthetic, or scientific values of the preserves, including but not limited to the modification of exist- ing manmade conditions toward their natural conditions, and discourage activity which would degrade the aesthetic, biological, or scientific values, or the quality, or utility of the preserve, when reviewing applications, or when developing and implementing management plans for the preserves;

2. To preserve, promote, and utilize indigenous life forms and habitats, including but not limited to: . . . shellfish and mollusks;

   Rule 16Q-20.06, F.A.C., provides:

   In evaluating applications for activities within the preserves or which may impact the preserves, the department recognizes that, while a particular alteration of the preserve may constitute a minor change, the cumulative effect of numerous such changes often results in major impairments to the resources of the preserve. Therefore, the department shall evaluate a particular site for which the activity is proposed with the recognition that the activity may, in conjunction with other activities adversely affect the preserve

   which is part of a complete and interrelated system. The impact of a proposed activity shall be considered in light of its cumulative impact on the preserve's natural system. The department shall include as a part of its evaluation of an activity:

   1. The number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve, whether considered by the department under its current authority or which existed prior to or since the enactment of the Act; and

   2. The similar activities within the preserve which are currently under consideration by the department; and

   3. Direct and indirect effects upon the preserve and adjacent preserves, if applicable, which may reasonably be expected to result from the activity; . . .

1. The proposed wastewater treatment plant will have essentially no impact off-site, and none on waters located half a mile away. However, there is little doubt that the increased human activity which the HDR development will bring will have some detrimental effect on this environment.

   
   

2. The goals which are broadly stated in the above provisions are worthy ones. Such conservation goals necessarily include judgment and policy considerations which exceed the scope of proceedings such as these. Here, it would be unreasonable to deny the permit for a well-designed, on-site wastewater treatment plant when a nearby facility is allowed to discharge effluent directly into the Outstanding Florida Waters at issue. Until a greater commitment to clean waters becomes public policy, the standards Petitioners urge for this or similar applications, are unrealistic. In this regard, it should be noted that the HDR project has been approved by local regulatory agencies.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that the Department of Environmental Regulation issue a Final Order granting the application of Hacienda Del Rio.

DONE and ENTERED this 31st day of May, 1985, in Tallahassee, Florida.

R. T. CARPENTER 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 31st day of May, 1985.

COPIES FURNISHED:

Betty J. Steffens, Esquire NABORS, GIBLIN & STEFFENS, P.A.

102 South Monroe Street Tallahassee, Florida 32302

William C. Henderson, Esquire HENDERSON & HENDERSON, P.A.

Post Office Box 1840

New Smyrna Beach, Florida 32070

B. J. Owens, Esquire Department of Environmental

Regulation

2600 Blairstone Road

Tallahassee, Florida 32301

Alva Stewart, Vice President South Waterfront Park

Homeowners Association

150 Charles Street Edgewater, Florida 32032

Victoria Tschinkel, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301

Docket for Case No: 84-004230

Orders for Case No: 84-004230