STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT C. ERNST, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 85-4243

) (OGC CASE NO. 85-1343)

) DEPARTMENT OF TRANSPORTATION and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, )

)

Respondents. )

) NEIGHBORS FOR CLEAN CANALS, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 86-0613

) (OGC CASE NO. 85-1393) DEPARTMENT OF ENVIRONMENTAL )

REGULATION and DEPARTMENT OF ) TRANSPORTATION, STATE OF )

FLORIDA, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled cases on March 4-5, 1986, at Key Colony Beach, Florida.

APPEARANCES

For Petitioners Robert C. Ernst

Robert C. Ernst and 7525 Gulfstream Boulevard Neighbors for Clean Marathon, Florida 33050 Canals:

For Respondent: James W. Anderson, Esquire

Department of Department of Transportation Transportation: Haydon Burns Bldg., Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32301

For Respondent Douglas H. MacLaughlin, Esquire Department of James D. Leary,

Environmental Certified Legal Intern

Regulation: Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

PRELIMINARY STATEMENT

The issue raised by these proceedings is whether Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Department of Transportation (DOT), to construct four Class V, group five-stormwater drainage wells on Marathon Key, Monroe County, Florida.

At final hearing Petitioners called Brian E. Lapointe, Robert L. Squibb, Louis J. Drakos, Geroge Kundtz, and Robert C. Ernst as witnesses. Petitioners' Exhibits 1, 2, 4-12, 22-25, 27, and 30 were received into evidence. DOT called John Leslie III, Albert Carter, and Michael Palozzi as witnesses. DOT Exhibits 1A-B and 2-8 were received into evidence. DER called Bennie T. Shoemaker and Donald Lawliss as witnesses. DER Exhibits IA-C and 2 were received into evidence. Ten members of the general public, in attendance at the hearing, testified on their own behalf.

Petitioners and Respondents have submitted proposed findings of fact and conclusions of law. A ruling has been made on each proposed finding in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Florida Department of Transportation (DOT) is currently engaged in widening State Road (SR) 5, the Overseas Highway, to four lanes on Marathon Key. To handle surface water runoff from a portion of the project, DOT received approval from the South Florida Water Management District for a surface water management system which included two retention ponds (west pond and east pond) to be located on Marathon Airport.1

2. On May 23, 1985, DOT filed an application with DER for authorization to construct four Class V, group five stormwater drainage wells within the retention ponds on Marathon Airport. DOT proposed to locate three wells within the west pond and one well within the east pond to comply with a Federal Aviation Administration (FAA) request that water levels be minimized to

   deter the attraction of birds which could present a hazard to aircraft navigation. By letter dated August 12, 1985, DER forwarded to DOT permit number US44-104852, dated July 26, 1985, for construction of the subject wells. Upon its receipt of the permit, DOT let the contracts for the widening of SR 5; however, neither DER nor DOT published notice of DER's intent to issue the requested permit.

   
   

3. On November 29, 1985, a few days after he received actual notice that the permit had been issued, Robert C. Ernst filed a request for hearing with DER contesting its issuance. Mr. Ernst owns a home which lies atop the groundwaters to be impacted by the subject permit and which abuts Dodge Lake, a Class III surface water body; Mr. Ernst uses the waters of Dodge Lake for swimming, fishing, and other recreational pursuits.

   
   

4. On December 20, 1985, Mr. Ernst and others, on behalf of Neighbors for Clean Canals (NCC), filed a request for hearing challenging the same permit. NCC was alleged to be a neighborhood association, formed December 17, 1985, to represent the interests of property owners affected by the proposed project; however, no such proof was offered at hearing.

   
   

5. The retention ponds proposed by DOT are designed to accommodate the first inch of stormwater runoff.2 Significantly, the first 1/2" of runoff from a highway system contains the bulk of pollutants. By retaining this runoff, and permitting it to evaporate or percolate through the soils underlying the

   retention ponds, any adverse impact to the ground waters is minimized.

   
   

6. DOT's proposal to install four injection wells within the ponds will deprive them of their retention capability. These wells will, within a 12-20 hour period, inject the first 1/2" of runoff (over 1 million gallons) directly into the groundwaters. Therefore, evidence of the nature of the pollutants, the quality of the receiving waters, and the geologic and hydrologic qualities of the area are significant.

   
   

7. Highway runoff contains high concentrations of pollutants ranging from toxic mutagenic and carcinogenic substances such as heavy metals (primarily lead and zinc), pesticides, and herbicides to oxygen consuming materials and solids which cause damages such as siltation and eutrophication. These pollutants, including oils, greases, and copper, can have significant adverse effects upon the quality of the receiving waters and the life forms it supports.

   
   

8. Underlying the proposed retention ponds is an aquaclude which extends from the surface to a depth of 30-40 feet. This aquaclude, a hard layer formation with very poor percolation qualities, will preclude any waters injected below it from returning to the surface and will direct their flow laterally. Since the maximum depths of Dodge Lake and the 100th Street Canal are 13' and 21' respectively, injection of the stormwater runoff at 50', well below the existing aquaclude, provides reasonable assurances that these water bodies will not be adversely impacted by the proposed project. However, the impacts to the groundwater and other water bodies is not so clear.

9. Other than sampling the groundwater to establish its character as Class III groundwater,3 DOT and DER did not

   perform any water quality analysis. Accordingly, the existing quality of the receiving groundwaters was not shown. Further, there was no showing of the hydrologic characteristics of the area. Therefore, there was no evidence of the mixing or dilution of the contaminants which would be injected, or of their ultimate point(s) of discharge into the surface waters surrounding Marathon Key.4

10. DOT and DER assert that "specific conditions" #4 and #5 attached to the subject permit will provide assurances that injection of the stormwater runoff will not cause or contribute to a violation of water quality standards. Those conditions provide:

    
    

    1. The following parameters shall be sampled at Well W-2 Florida Department of Transportation drawing sheet 3 of 5 and Well E-1 Florida Department of Transportation drawing sheet 4 of 5 and reported quarterly to the Department ninety (90) days following certification and placement of this facility in operation. The parameters to be sampled are: Napthalene, Lead and volatile organic compounds including: Trichloroethylene, Tetrachloroethylene, Carbon Tetrachloride, Vinyl Chloride, 1,1,1,-Trichloroethane, 1,2- Dichloroethane, Benzene, and Ethylene Dibromide.

       
       

    2. The discharge authorized by this permit shall be consistent at all times with the water quality standards set forth in Chapter 17-3, Florida Administrative Code. Should conditions in the receiving stream warrant, the Permittee may be required by the Department to upgrade, reduce, or cease the discharge approved by this permit and adopt an alternative method of disposal within a reasonable period of time.

11. Under specific condition #4, the ground waters will be sampled at one injection well within each of the retention ponds. Without evidence of the mixing and flow characteristics of the groundwater, the reliability of the proposed monitoring program is questionable since it was not shown where, transitionally or ultimately, the pollutants would settle. Absent such proof, there is no evidence that the wells are sited so as to detect any water quality violations. Therefore, specific conditions #4 and #5 do not provide reasonable assurances that the proposed project will not cause or contribute to a violation of water quality standards.

    
    

    CONCLUSIONS OF LAW_

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Petitioners, Robert C. Ernst and Neighbors for Clean Canals (NCC), pursuant to Section 120.57, Florida Statutes, contest the decision of DER to issue a permit to DOT to construct four Class v, group five-stormwater drainage wells. Pertinent to this proceeding, Section 120.57 provides:

    
    

    The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency.

    
    

    When standing is resisted, as it is in this proceeding, the burden is on the protestant to prove standing. State, Department of Health and Rehabilitative Services, v. Alice P., 367 So. 2d 1045 (Fla. 1st DCA 1979).

    
    

14. Chapter 120, Florida Statutes, does not attempt to define substantially affected persons. The Florida courts have, however, adopted the federal "injury-in-fact" and "zone of interest" tests governing standing. Montgomery v. Department of Health and Rehabilitative Services, 468 So. 2d 1014 (Fla. 1st DCA) 1985). Under this two-prong test, a person is substantially affected if he can demonstrate that he will suffer "injury-in- fact" which is of sufficient immediacy to entitle him to relief and the injury is of a type or nature which the proceeding is designed to protect (the "zone of interest").

    
    

15. Where, as here, an association institutes a proceeding

    on behalf of its members, it can be accorded standing only when it demonstrates that a substantial number of its members, although not necessarily a majority, are substantially affected by the proposed agency action, the nature of the injury is of a type which the proceeding is designed to protect: and, the relief requested is of a type appropriate for an association to receive on behalf of its members. See Florida Home Builders Assoc. v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982).

    
    

16. Mr. Ernst has demonstrated his standing to maintain this action. His home lies atop the groundwaters to be impacted by the proposed project and he uses the waters proximate to the proposed wells which could be adversely impacted if the wells were not properly constructed or sited. NCC failed, however, to demonstrate its standing since it failed to offer any evidence that a substantial number of its members could be substantially affected by the proposed project or that the interest sought to be protected was within the association's general scope of interest and purpose.

    
    

17. Although Mr. Ernst has demonstrated standing, DOT asserts that his petition was untimely since it was filed more than three months after DOT received its permit. DOT's assertion is without merit.

    
    

18. It is established law that persons whose substantial interests may be affected by proposed agency action must be accorded a point of entry into the proceedings. See Capeletti Brothers, Inc. v. Department of Transportation, 362 So. 2d 346 (Fla. 1st DCA 1978). Until accorded notice, actual or constructive, such person has not been offered a point of entry.

    
    

19. Rule 17-103.150, F.A.C., provides a method to assure constructive notice is given to all substantially affected persons, and to limit the time within which a request for an administrative hearing may be filed. That rule provides that each person who filed an application for a DER permit may publish a notice of proposed agency action in a newspaper of general circulation in the county in which the activity will be located. If notice is published, a person whose substantial interests might be affected by the proposed action must file his request for hearing within 14 days of the date of publication. Significantly, the rule also provides:

    
    

    Since persons whose substantial interests are affected by a Department decision on a

    permit application may petition for an administrative proceeding within fourteen

    (14) days after receipt of notice and since, unless notice is given or published as prescribed in this rule, receipt of notice can occur at any time, the applicant or persons benefiting from the Department's action cannot justifiably rely on the finality of the Department's decision without the notice having been duly given or published.

    
    

20. DOT elected not to publish notice under the provisions of Rule 17-103.150, F.A.C., and cannot justifiably rely on the finality of DER's decision. Mr. Ernst's petition for hearing, filed within a few days of his receipt of notice, was timely. 5

    
    

21. DER has jurisdiction over the permitting of the proposed four Class V, group five-stormwater drainage wells pursuant to Section 403.087, Florida Statutes, and Chapters 17-4 and 17-28, F.A.C. A party seeking approval to inject stormwater drainage into Class G-III water must provide reasonable assurances that the project will not violate water quality standards set forth in Rule 17-3.402(1), F.A.C. That rule provides:

    
    

    All ground water shall at all places and at all times be free from domestic, industrial, agricultural, or other man-induced non- thermal components of discharges in concentrations which, alone or in combination with other substances, or components of discharges (whether thermal or non-thermal):

    
    

    1. Are harmful to plants, animals, or organisms that are native to the soil and responsible for treatment or stabilization of the discharge relied upon by Department permits or

       
       

    2. Are carcinogenic, mutagenic, teratogenic, or toxic to human beings, unless specific criteria are established for such components in Rule 17-3.404: or

       
       

    3. Are acutely toxic to indigenous species

       of significance to the aquatic community within surface waters affected by the ground water at the point of contact with surface waters or

       
       

    4. Pose a serious danger to the public health, safety, or welfare; or

       
       

    5. Create or constitute a nuisance or

       
       

    6. Impair the reasonable and beneficial use of adjacent waters.

    
    

22. DOT has failed to provide reasonable assurances that the proposed stormwater discharge will not cause or contribute to a violation of the groundwater standards set forth in Rule 17-3.402(1), Florida Administrative Code.

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Environmental Regulation enter a Final Order:

1. Dismissing the petition for hearing filed by Neighbors for Clean Canals, and

   
   

2. Denying the issuance of permit number US44-104852 to the Department of Transportation.

DONE AND ENTERED this 16th day of April, 1986, at Tallahassee, Florida.

WILLIAM J. KENDRICK

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 16th day of April, 1986.

ENDNOTES

1/ In addition to the runoff from SR 5, the runoff from numerous parking lots which serve the retail establishments fronting SR 5 will likewise drain into the retention ponds.

2/ One inch or more of rainwater in a 24 hour period was recorded in the area of the proposed wells 19 times in 1983, B times in 1984, and 14 times in 1985. Stormwater runoff in excess of the first inch will, under DOT's stormwater management system, be discharged into Dodge Lake and the lOOth Street Canal. This discharge is not, however, pertinent to these proceedings.

3/ This class of groundwater is currently considered too expensive to treat for use as drinking water.

4/ The surface waters surrounding Marathon Key have been designated outstanding Florida waters.

5/ DOT's assertion that Section 120.60(2), Florida Statutes, mandates a different conclusion is equally without merit. That section addresses the time frames within which an agency must pass on a request for licensure, not the timeliness of a request for hearing on the agency's proposed action. The provisions of Section 120~60(2) are additionally not pertinent to this case since DER processed DOT's application in a timely manner.

APPENDIX

The Petitioners' proposed findings of fact are addressed as follows:

1. Addressed in paragraph 2.

   
   

2. Addressed in paragraph 2.

   
   

3. The amount of rainfall is addressed in footnote 2, paragraph

5. The remainder of paragraph 3 is not relevant.

1. Addressed in footnote 1, paragraph 1, and paragraph 6.

   
   

2. The constituents of highway runoff are addressed in paragraph 7. The character of surrounding bodies of water is addressed in footnote 4, paragraph 9, and paragraph 3. The balance of paragraph 5 is not relevant.

   
   

3. Addressed in paragraphs 8 and 9.

   
   

4. Addressed in paragraphs 8 and 9.

   
   

5. Addressed in paragraphs 9, 10, and 11.

   
   

6. Addressed in paragraph 8.

   
   

7. Not relevant

   
   

8. Not relevant

DOT's proposed findings of fact are addressed as follows:

1. Adopted in paragraph 2.

2. Not relevant

   
   

3. Not relevant

   
   

4. Not relevant

   
   

5. Adopted in paragraph 2.

   
   

6. Adopted in paragraph 2.

   
   

7. Addressed in paragraph 2.

   
   

8. Adopted in paragraph 3.

   
   

9. Adopted in paragraph 4.

   
   

10. Addressed in paragraph 9.

    
    

11. Addressed in paragraph 8.

    
    

12. Addressed in paragraph 8.

    
    

13. Addressed in paragraph 10.

    
    

14. Addressed in paragraphs 10 and 11.

    
    

15. Addressed in paragraph 7.

    
    

16. Addressed in paragraph 10, Conclusions of Law.

    
    

17. Rejected as contrary to the facts found in this Recommended Order.

    
    

18. Addressed in paragraph 2.

DER's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraphs 2, 3, 4, and 9. 3 & 4. Addressed in paragraphs 1 and 2. 5 & 6. Addressed in paragraphs 9, 10, and 11.

7. Not a finding of fact 8 & 9. Addressed in paragraph 8.

10. Addressed in paragraphs 10 and 11. 11 & 12. Addressed in paragraphs 1 and 2.

13. Addressed in paragraph 9, or contrary to the facts found in

this Recommended Order.

14 & 15. Contrary to the facts found in this Recommended Order.

COPIES FURNISHED:

Mr. Robert C. Ernst

7525 Gulfstream Boulevard

Marathon, Florida 33050

James W. Anderson, Esquire Department of Transportation Haydon Burns Building, MS-58 605 Suwannee Street

Tallahassee, Florida 32301

Douglas H. MacLaughlin, Esquire

James D. Leary, certified legal intern Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building

Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 85-004243

Orders for Case No: 85-004243