STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

) AL BATES and LINDA FONSECA, )

BILL and SHARON HALL, and )

FRED and LESLIE BAKER, )

)

Petitioners, )

)

vs. ) CASE NO. 86-1576

)

CITY OF ST. CLOUD and STATE )

OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to the notice of hearing furnished the parties, the final hearing in this case was held before Stephen F. Dean, a Hearing Officer with the Division of Administrative Hearings, in Kissimmee, Florida on August 14, 1986. The issue for consideration was whether a permit to construct a 429 acre phase I effluent disposal site should be issued to the City of St. Cloud.

APPEARANCES

For Petitioner: Melvin and Linda Tyner

Post Office Box 1072 Kissimmee, Florida 32742

Al Bates and Linda Fonseca 801 Cypress Drive

St. Cloud, Florida 32769

Bill and Sharon Hall 601 Cypress Drive

St. Cloud, Florida 32769

Fred and Leslie Baker Route 2, Box 2734

St. Cloud, Florida 32769-0245

For Respondent: Vivian Feist Garfein, Esquire

Assistant General Counsel State of Florida Department of Environmental Regulation

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

H. R. Thornton, Jr.

City of St. Cloud, Florida 1300 Ninth Street

St. Cloud, Florida 32769 BACKGROUND INFORMATION

Applicant, City of St. Cloud (hereinafter St. Cloud) made application to DER for the construction of an effluent disposal system in St. Cloud, Florida. Subsequent to publication of the DER's intent to issue, petitions were filed by Al Bates, Linda Fonseca, Bill and Sharon Hall, Fred and Leslie Baker, and Melvin and Linda Tyner. These cases were Consolidated for hearing.

Department of Environmental Regulation and Al Bates have submitted posthearing Proposed Findings of Fact, the City of St. Cloud and Melvin and Linda Tyner did not. A ruling has been made on each proposed finding of fact in the appendix to this Recommended Order.

ISSUES

Should a permit for a wastewater spray field be granted to the City of St.

Cloud?

FINDINGS OF FACT

1. On March 18, 1985, the City of St. Cloud applied to the DER for a permit to construct a 429 acre Phase I effluent disposal site (+ 300 acre wetted area via spray irrigation) including support structures as the existing wastewater treatment plant site.

   
   

2. On April 17, 1986, DER issued an intent to issue Permit Number 49- 101256.

   
   

3. The major concern of the DER with regard to the proposed project was the hydraulic disposal capacity of the site, i.e., how much water could the site absorb.

   
   

4. Boyle Engineering Corporation and their hydrogeologic consultants determined that the site has a disposal capacity of 2 million gallons per day (mgd) based on an area of 300 acres under spray. This equals a spray application rate of 1 inch per week based upon studies, test borings, and test wells in the subject area. (Testimony of Brian McMahan and Susan Metcalfe)

   
   

5. The disposal capacity of any land application effluent disposal system is largely a function of the permeability of the soils, the transmissivity of

   the receiving ground water, aquifer and net precipitation (rainfall). Permeability is a measure of how fast water will move within the soil matrix. Transmissivity indicates how much water will travel through a cross section of the aquifer system with time. Transmissivity is largely a function of the permeability and aquifer thickness at a given location. Net precipitation is the total rainfall for a location less surface runoff, evaporation, and transpiration (plant uptake subsurface percolation). (Testimony of Susan Metcalfe and Dave Twedell).

   
   

6. The proposed St. Cloud site has very low permeable soils. In addition the drainage in the vicinity is very poor This results in high water table conditions at the proposed site during periods of heavy rainfall. The low permeability of the soil will restrict the amount of effluent which can be sprayed upon the site, especially during the high water table season. (Testimony of Dave Twedell). The area around the site is subject to poor drainage due to lack of storm drains and the low lying nature of the land. (Testimony of Mr. Brown). Flooding or partial flooding occurs in the vicinity of the Bates and Tyners when there are heavy rains. Their concerns are two fold: (1) the proposed site will increase flooding, and (2) the effluent will pollute their wells. (Testimony of Bates and Tyner).

   
   

7. Flooding in the area is the result of already existing poor drainage. When it rains, treated effluent will not be sprayed, but will be retained on site in an artificial impoundment. The impoundment area for the proposed site is planned to hold 70 days operational flow storage. Department rules only require 3 days of operational flow storage for times when precipitation make spray irrigation impossible. (Testimony of Lee Miller).

   
   

8. The impoundment will not be lined with a hydraulic barrier system. Instead an alternative system is to be constructed around the pond which will capture ground water that has escaped underneath the pond and pump this water back into the pond. This system is designed to retain water on the site, however, this method has not been used before. Its use in an area subject to flooding and high water tables is not proven. (Testimony of Dave Twedell).

   
   

9. Because of variations in the reliability of predicting soil permeability, the site may not have the disposal capacity projected by Boyle during periods of wet weather. The DER proposes that the site be field load tested for a period of one year to more accurately determine the disposal capacity achieved because of the conditions existing in the area and the variability of that results. (Testimony of Lee Miller and Dave Twedell).

   
   

10. At the end of the one year proposed testing period, the field disposal capacity test will provide more accurate data from which to determine the average permeability for the 300 acre spray field. At the end of the year's test, the City of St. Cloud will have to apply for an operating permit based on the disposal capacity rate established by the test. (Testimony of Lee Miller and Dade Twedell).

    
    

11. The hydraulic retention system is intended to prevent the holding pond and part of the spray field from adversely effecting the ground water levels of the homeowners with property adjacent to the pond. Bacterial content in the treated effluent is so low it would be "drinkable". Biological pollution of the objectors' wells is possible from livestock they have on their own property. Testing is not performed for chemical residues in effluent. (Testimony of Dave Thedell).

12. In its conditions on the proposed permit, DER is requiring a water quality monitoring program which is very stringent. Eight ground water monitoring wells will test the ground water quality around the site. In addition, twelve ground water elevation stations will record ground water levels both on and off site on a continuous basis. Growth water levels will be recorded off site to determine what effect, if any, the operation of the site is having on adjacent, down gradient property. (Testimony of Dave Twedell, DER exhibit #1). No testing for chemical pollution is required to be performed on a periodic basis.

    
    

13. Because of surface water quality concerns, the DER is requiring the city to monitor the water quality of any stormwater discharge off the site, flowing into Gator Bay. Three surface water quality stations will be in operation, along with two surface water flow stations. Surface water flow will be monitored continuously to determine the hydraulic impact the site is having on the Gator Bay system. (Testimony of Dave Twedell, DER exhibit #1). Again, testing does not consider chemical pollutants.

    
    

14. The City must implement their surface and ground water monitoring program at least 90 days prior to the use of the effluent spray field. This will establish initial background and ambient water quality standards. (Testimony of Dave Twedell, DER exhibit #1). This testing does not establish a background for chemical pollutants.

    
    

15. The monitoring systems will provide early warning detection for the wells of nearby residents. (Testimony of Dave Twedell). However, if biological pollution occurs, there will be a controversy about whether it was the spray field or the livestock which caused it.

    
    

16. A 500 foot buffer zone to be maintained between the perimeter of the spray field and any existing shallow water supply well was said to prevent any contamination of existing wells. (Testimony of Dave Twedell, DER exhibit #1). However, this opinion was predicated upon non-flood conditions.

    
    

17. Osceola County does not have an actual drainage system or a stormwater management plan for the area which would eliminate or reduce the flooding experienced by residents of the area. (Testimony of William C. Whitney).

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. The Department of Environmental Regulation's permitting authority over these projects is found in Section 403.087, Florida Statutes. This section states in pertinent part as follows:

    
    

    (4) The department shall issue permits

    to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is

    provided and equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards as rules promulgated by the Department

    
    

20. With regard to sewage treatment facilities and discharges, the Department promulgated Chapter 17-6 and 17-4, Florida Administrative Code. Section 17-4.07 and 17-6.080(3) are particularly applicable.

    
    

21. Based on the plans submitted by the City of St. Cloud, the specific conditions set forth in the proposed DER permit, and the facts presented there are two issues: (1) will the proposal add to flooding conditions if it rains, and (2) will the waters of the state be polluted?

    
    

22. The proposed spray field may contribute to higher water tables and thereby to the flooding potential. Although flooding does not appear to be within the Specific purview of this Agency, when the flooding has the potential to pollute the waters of the state, the agency can establish reasonable conditions. The testimony taken as a whole indicates that under flood conditions, the potential for pollution increases and it is everyone's understanding that the large impoundment area is to permit retention of treated effluent under such conditions that it poses minimal hazards to waters of the state. The unpredictability of weather dictates that the impoundment area operates with significant (50 percent) reserve. However, while containing most treated effluent, the pond does not have a hydraulic seal and treated effluent will seep into the ground. The proposed system is supposed to prevent the treated effluent from leaving the site; however, the system is untested. With the periodic floodings, the potential exists for effluent to move off site. This raises the possibility of biological pollution.

    
    

23. Reasonable assurances were given against biological pollution of the waters of the state during non-flood condition, but a testing program addressing chemical pollution is not even addressed in the state's proposed program and problems increase when flooding occurs. Appropriate conditions should be placed on the permit to address all forms of pollution and conditions, to include:

a.) Restricting spraying when flooding occurs in the general area, and b.) Requiring the City to retain treated effluent-on site until the

flooding recedes; and establishing background measures of biological and chemical pollutants; and

c.) Periodic testing for biological and chemical pollutants; and

d.) Providing for removal and clean up of the impoundment area if the operating permit is not granted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, therefore,

RECOMMENDED that DER issue the permit as reflected in the draft permit; That issuance in no way indicates a commitment to issuance of an operating permit; That the petitioners be placed on the DER mailing list at such time as the City of St. Cloud applies for the operating permit of the spray field and

thereby be noticed of all further proposed agency action with regard to this project; and the permit be subject to those additional conditions recommended herein which the Department may determine are prudent.

DONE AND ORDERED this 15th day of September 1986 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 15th day of September 1986.

APPENDIX TO RECOMMENDED ORDER CASE NOS. 86-1575 and 86-1576

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties.

The Agency submitted proposed findings which were considered as follows: 1-6. Adopted with some minor additions and deletions for clarification.

1. Adopted as paragraph 9 with minor changes.

2. Adopted as paragraph 10 with minor changes.

3. Adopted as paragraph 7 with minor changes.

4. Adopted as paragraph 8 with minor changes.

5. Rewritten substantial as paragraph 11 to better conform to the evidence.

6. Rewritten substantial as paragraph 12 to better conform to the evidence.

7. Adopted as paragraph 13.

8. Adopted as paragraph 14.

9. Adopted as paragraph 15.

10. Adopted as paragraph 16.

11. Adopted as paragraph 17.

The Petitioner's, Bates and Fonseca, submitted a letter which is considered primarily argument. Their general and unnumbered comments concerning the low lying nature of the land and potential for contamination are included in the Recommended Order. The remainder of their comments are rejected as contrary to the facts.

COPIES FURNISHED:

Vivian Feist Garfein, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Melvin and Linda Tyner Post Office Box 1072 Kissimmee, Florida 32742

Al Bates Linda Fonseca

801 Cypress Drive

St. Cloud, Florida 32769

Bill and Sharon Hall 601 Cypress Drive

St. Cloud, Florida 32769

Fred and Leslie Baker Route 2, Box 2734

St. Cloud, Florida 32769-0245

H. R. Thornton, Jr.

City of St. Cloud, Florida 1300 Ninth Street

St. Cloud, Florida 32769

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

MELVIN and LINDA TYNER,

Petitioners,

vs. OGC CASE NO. 86-0500

DOAH CASE NO. 86-1575

CITY OF ST. CLOUD and STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents.

/ AL BATES and LINDA FONSECA,

BILL and SHARON HALL, and FRED and LESLIE BAKER,

Petitioners,

vs. DOAH CASE NO. 86-1576

CITY OF ST. CLOUD and STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents.

/

FINAL ORDER

On September 15, 1986, the Division of Administrative Hearings' hearing officer who conducted a Section 120.57(1), Florida Statutes, proceeding in the above-styled case submitted his Recommended Order to me and all the parties. A copy of the Recommended Order is attached as Exhibit A. Respondent, City of St. Cloud (the City), made two motions for extension of time to file exceptions to the Recommended Order, and waived the Section 120.60, Florida Statutes, time limits for entry of this Final Order. The City's motions were granted, all parties were given extensions of time to file exceptions, and the time for entry of this Final Order was extended until December 9, 1986. Only the Department filed exceptions, a copy of which are attached as Exhibit B. The Recommended Order then cane before me as Secretary for final agency action.

BACKGROUND

On March 18, 1985, the City of St. Cloud applied to the Department for a permit to construct a 429 acre spray irrigation effluent disposal site (300 acres wetted area) at the site of its existing wastewater treatment plant in Osceola County. The Department gave notice of its intent to issue the requested permit on April 17, 1986. Al Bates, Linda Fonseca, Bill and Sharon Hall, Fred and Leslie Baker, and Melvin and Linda Tyner then filed timely petitions for hearing which were consolidated before Hearing Officer Stephen F. Dean.

RULINGS ON EXCEPTIONS

The Department's exceptions challenge various findings of fact and conclusions of law of the recommended order and the recommendation that certain additional conditions be placed on the proposed permit for the spray irrigation site. In reviewing these exceptions, I am aware of and have heeded the Chapter 120, Florida Statutes, prohibition against rejecting the hearing officer's findings of fact unless I have reviewed the entire record and have found that they are not based on competent substantial evidence.

The Department's first exception is to the hearing officer's finding that the impoundment for the retention of treated effluent at the site will not be lined with a hydraulic barrier system, but will instead have an alternative, unproven system to capture and return effluent seeping from the pond. The Department argues that the evidence shows that the impoundment will have a hydraulic - barrier consisting of an underdrain system to capture seepage from the impoundment aid that there was no evidence presented to show that this type of proposed barrier has not been previously used or that its use in flood-prone areas is unproven.

The hearing officer cites the testimony of Dave Twedell, who was accepted as an expert in solid and hazardous waste management and hydrogeology, as supporting his findings. Having reviewed Mr. Twedell's testimony, however, I do not find any basis for the disputed findings of fact. Mr. Twedell testified that the proposed underdrain system around the impoundment will act as a hydraulic liner, preventing water from migrating offsite, even though there will be no actual physical barrier. Mr. Twedell's testimony was specific and uncontradicted:

. . . what we have required is that a hydraulic barrier be established, subsurface hydraulic barrier be established around the pond that will capture any additional water that cones out of the pond . . .

* * *

So that it, essentially, acts as a liner. It's a

-- it is a manmade hydraulic liner, if you wish to call it that.

* * *

[T]his system acts and does the same thing that the

-- that a liner does. It acts as a barrier, preventing water from leaking out underneath the site and going off site. . . . It meets the Department's requirements of a sealed wet weather storage pond. [Transcript, pp. 191 - 193.]

I have reviewed the entire record, and I find no evidence to support the hearing officer's findings that the impoundment will have no liner and that the proposed hydraulic barrier system is untried and unproven. Accordingly, I reject these findings of fact in Paragraph 8 of the Recommended Order and specifically find that an acceptable hydraulic liner is proposed for the impoundment based on Mr. Twedell's uncontroverted testimony. Because of my rejection of these findings of fact, I also reject the following portions of the hearing officer's Conclusion of Law No. 5:

However, while retaining most treated effluent, the pond does not have a hydraulic seal and treatment effluent will seep into the ground. The proposed system is supposed to prevent the treated effluent from leaving the site; however, the system is untested. With the periodic floodings, the potential exists for effluent to move off site.

This raises the possibility of biological pollution.

I specifically conclude that the underdrain system proposed for this impoundment is acceptable and complies with the applicable Department rules.

The Department's second exception is to the hearing officer's findings in Paragraphs 11, 12, 13 and 14 of the Recommended Order that the monitoring program required by the draft permit does not address chemical pollutants. The Department argues that there is not competent substantial evidence to support the hearing officer's findings and that his findings are directly contradicted by the unambiguous terms of the draft permit.

Reviewing the draft permit, I find that Paragraph 1(e) of the specific conditions requires testing of surface waters for primary and secondary drinking

water standards, purgeable aromatics (EPA Method 602), and pesticides and PCBs (EPA Method 608). Specific condition no. 2 of the draft permit further requires that the City comply with the Ground Water Monitoring Plan Implementation Schedule, which provides that the effluent stream and groundwater monitoring wells also must initially be sampled for primary and secondary drinking water standards, while the effluent stream must additionally be sampled for pesticides and PCBs (EPA Method 608), base/neutrals, acids and pesticides (EPA Method 625), and purgeables (EPA Method 624). In accordance with specific condition no. 2, additional analysis of ground water samples may be required if effluent analyses indicate that a broader ground water monitoring program is warranted.

Because the draft permit directly contradicts the hearing officer's findings about chemical testing, and because I can find no competent substantial evidence in the record to support these findings, I reject the last sentence in each of Paragraphs 11, 12, 13, and 14 of the Recommended Order's findings of fact.

Because of my rejection of the findings regarding chemical analyses, I must also reject the hearing officer's Conclusion of Law No. 6 as being contrary to the findings of fact to the extent it holds that a testing program for chemical pollutants is not required by the draft permit. I also reject the four proposed additional conditions which the hearing officer recommends should be placed on the permit for the following reasons: the hearing officer's proposed restriction on spraying when flooding occurs is already addressed by specific condition no. 10 of the draft permit; his proposed requirement that effluent not be sprayed until flooding recedes is also addressed by specific condition no.

10; his proposed requirements for establishment of background levels of and periodic testing for biological and chemical pollutants are covered by specific conditions nos. 1(e) and 2 of the permit; and his proposed requirement for removal and clean up of the impoundment area if an operating permit is not issued is not supported by the findings of fact.

ORDER

Having considered the Recommended Order and the Department's exceptions, and having reviewed the entire record of the proceeding below, it is hereby

ORDERED:

1. The Recommended Order's findings of fact and conclusions of law are adopted in this Final Order except as specifically rejected in my rulings on exceptions;

   
   

2. The Department shall issue a construction permit to the City of St. Cloud with the same terms and conditions as set forth in the draft permit which was at issue in this proceeding. In accordance with the hearing officer's recommendation, I direct that the petitioners in this proceeding be notified of proposed agency action on any operating permit application which the City may file for this project.

Any party to this Order has the right to seek judicial review of the order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department of Environmental Regulation in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400 and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the

appropriate District Court of Appeal. The Notice of Appeal must be filed within

30 days from the date this order is filed with the clerk of the Department.

DONE AND ORDERED in Tallahassee, Florida, on December 3, 1986.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. SCHINKEL

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-4805

CERTIFICATE OF SERVICE

I HEREBY CERTIFY a copy of the foregoing FINAL ORDER has been furnished by United States Mail to Stephen F. Dean, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; Melvin and Linda Tyner, Post Office Box 1072, Kissimmee, Florida 32742; Al Bates and Linda Fonseca, 801 Cypress Drive, St.

Cloud, Florida 32769; Bill and Sharon Hall, 601 Cypress Drive, St. Cloud, Florida 32769; Fred and Leslie Baker, Route 2, Box 2734, St. Cloud, Florida 32769-0245; H. R. Thornton, Jr., Esquire, City of St. Cloud, Florida, 1300 Ninth Street, St. Cloud, Florida 32769; and Vivian Feist Garfein, Esquire, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, this 4th day of December, 1986.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

PAUL R. EZATOFF

Deputy General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-9730

Docket for Case No: 86-001575

Orders for Case No: 86-001575