STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH W. McINERNY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2212

)

ROBERT PETERSON (PETERSON'S ) CONDOMINIUM) and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

) EDDIE M. OHI, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 86-2079

)

ROBERT PETERSON (PETERSON'S ) CONDOMINIUM) and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

) LINDA L. POPP, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2080

)

ROBERT PETERSON (PETERSON'S ) CONDOMINIUM) and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in the above-styled cases on September 19, 1986 at Key Largo, Florida. The parties were afforded leave through October 14, 1986, to submit memoranda supportive of their respective positions. Petitioner, McInerny and Respondents have submitted memoranda supportive of their respective positions. The parties' proposed findings, argument and conclusions were considered by me in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix to this Recommended Order.

APPEARANCES

For Petitioner, William W. Deane, Esquire Joseph W. McInerny: Hanley and Deane, P.A.,

1700 9th Street North, Suite B St. Petersburg, Florida 33704

For Petitioner, Linda L. Popp, pro se Linda L. Popp: Route 1, Box 43

Key Largo, Florida 33037

For Petitioner, No appearance Eddie M. Ohi, Jr.:

For Respondent, Douglas H. McLaughlin, Esquire Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road

Regulation: Tallahassee, Florida 32301

For Respondent, Paul Jacobs, Esquire Robert Peterson: Marks, Aronovitz & Leinoff

9200 South Dadeland Boulevard Suite 100 - Dadeland Towers Miami, Florida 33156

ISSUE

The issue presented for decision herein is whether or not the Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Robert Peterson, to construct a 0.007 MGD wastewater treatment facility with effluent disposal to Dual Class V injection wells in Key Largo, Monroe County, Florida.

PRELIMINARY STATEMENT

At the final hearing, Petitioner, McInerny called as expert witnesses Jacob Baird and Henry Hendel. Respondent, DER, called its employees Ms. Jennifer Barrone and Vincent Mole as expert witnesses. DER's Exhibits 1-11 were received into evidence. Respondent, Robert Peterson called Ted Sikorski, an engineer for installation of the treatment facility on the project.

At the close of the hearing, the parties were afforded leave to submit, via affidavit, a statement from the publisher of the Key West Citizen (a local newspaper) respecting the general availability of the Key West Citizen to residents in Key Largo. Petitioner, McInery has submitted a Motion to Strike the affidavit submitted by Respondent Peterson on the grounds, inter alia, that the affidavit went beyond the guidelines submitted by the under signed and that it also contained other self-serving statements prejudicial to Petitioners' position. Based on the posture that this case was submitted and the fact that the Petitioners were afforded a de novo Section 120.57(1) hearing with all rights and opportunities accorded Petitioners, including a clear point of entry into these proceedings, the Motion to Strike is denied since no finding is made herein based on the affidavit submitted by the publisher of the Key West Citizen.

FINDINGS OF FACT

1. On January 17, 1986, Robert Peterson, doing business as Peterson's Condominiums, submitted an application to the Florida Department of Environmental Regulation (DER) to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells into G-III groundwater. The proposed site is located at Mile Marker 95.6, U.S. Highway 1, Key Largo, Florida. The sewage treatment plant is to serve a ten unit condominium with provisions for four future units. The designed population to be served is 62. (Permit Application)

   
   

2. The Plant is designed to treat the sewage so that after treatment and disinfection, the effluent will, on average contain no more than 20 parts per million biological oxygen demand (BOD-5 day) and 20 parts per million of total suspended solids (TSS). There will be 90 percent removal of these pollutants after treatment. The effluent will be disinfected in a chlorine contact chamber, with chlorine tablets used as the disinfectant. Sludge will be removed by a licensed scavenger truck to Monroe County approved disposal sites.

   
   

3. Noise from the plant will be controlled by a blower filter, silencers, and a weather proof hood. (Permit Application).

   
   

4. No control is contemplated for odor or aerosol drift other than proper plant operation. No lighting will be provided at the plant. Emergency power

   `from a rental portable generator will be used if there is an extended power failure.

   
   

5. Along with the sewage treatment application, Respondent Peterson also submitted two permit applications for injection of the treated effluent into 2 Class V injection wells.

   
   

6. The total volume of treated effluent that would enter into both wells combined is 6500 gallons per day.

   
   

7. The 6 inch diameter wells would be 65 feet deep with casing and grout down to a depth of 30 feet.

   
   

8. Upon receipt of the permit applications, DER reviewed the application and requested an additional application including groundwater samples measuring total dissolved solids. Peterson submitted two samples, both indicating total dissolved solids significantly greater than 10,000 milligrams per liter. (DER's Exhibits 2, 3 and 4).

   
   

9. The samples (TDS) were taken approximately 1 and 6 miles from the proposed site. Based on DER's staff review of hundreds of groundwater quality analyses from the Keys, DER's staff determined that the samples submitted were consistent with other groundwater TDS levels throughout the Keys. (Testimony of Barrone and Me1e). Use of the samples by DER was reasonable and proper.

   
   

10. Groundwater in which the TDS is greater than 10,000 milligrams per liter (parts per millions) is classified as G-III groundwater. Such water is considered non-potable. (Testimony of Barrone and Mele; Florida Administrative Code, Rule 17-3.403(1)).

    
    

11. After review of the application, DER issued an "intent to issue" Peterson the permits requested on March 5, 1986. (DER's Exhibit 7). The "intent to issue" as drafted by DER established certain conditions to monitor

    water quality and to test treated effluent before it is discharged to Class V wells. As an example, flow, pH, and chlorine residuals are to be sampled daily; BOD and total suspended solids are to be sampled monthly and fecal coliform is to be sampled once per quarter. Test results are to be submitted to DER on a monthly basis and the analysis program is conditioned to demonstrate substantial compliance with water quality standards as set forth in pertinent sections of the Florida Administrative Code. Provided the monthly reports reveal violation of DER's standards, the permittee will be required to rectify the problems. (DER's Exhibit 7, testimony of Barrone and Mele).

    
    

12. Additionally, DER has conditioned its intent to issue on a trial or experimental basis and this project will again be subjected to review in one year. (DER's Exhibit 7, condition 12). Should the permittee fails to bring the facility into full compliance within the one year period, an operational permit will not be issued. DER imposed this condition on the subject wastewater treatment plant, based on the fact that it is a new model and DER does not have extensive experience with the monitoring of this type plant. (Testimony of Barrone and Mele). Evidence introduced reveals that the plant manufacturer, Smith and Loveless, is the largest manufacturer of factory built water and wastewater pump stations and treatment plants. The manufacturer pioneered prefabricated treatment plants with over 30 years experience. Evidence reveals that there are at least three plants in operation in Florida without any operational problems.

    
    

13. Upon "issuing the intent to issue", DER directed the permit applicant (Peterson) to publish notice in the Key West Citizen (Peterson's Exhibit 1). Notice of this proposed agency action was published in the Key West Citizen on March 17, 1986, giving any substantially affected party 14 days from that date to file a petition for administrative proceedings with DER's Office of General Counsel. (Petitioner's Exhibit 2).

    
    

14. On March 26, 1986, DER received a letter from Petitioner McInerny, Popp and other local citizens (C.C. Waggle) protesting the proposed project. The Objectors indicated that they had heard that the proposed agency action was advertised in the Key West Citizen but that the Key West Citizen was not available in their area. 1/

15. Based on these protest letters, DER afforded Objectors, including Petitioners, a new point of entry into these proceedings. Petitioners Ohi, Popp and McInery timely petitioned for an administrative hearing challenging the proposed agency action. The challenges by Petitioners, based on DER's second point of entry, were timely filed.

    
    

16. When the proposed facility becomes operational, it will not cause foul odors or create a nuisance due to aerosol drift based on the design features. (Testimony of Barrone, Mele and Sikorski.

    
    

17. The extended aeration facility, as proposed, is the most reliable type of sewage treatment plant for this type operation. (Testimony of Mele).

    
    

18. The expected pollutants produced from domestic sewage are BOD, dissolved solids and to a lesser extent heavy metals, nitrates, phosphorus and bacteria. (Testimony of Mele).

    
    

19. After treatment, the effluent from this facility is not expected to be either toxic or carcinogenic. (Testimony of Mele).

20. The Class V wells into which the treated effluent would be placed are approximately 500 feet from the nearest shoreline, the Atlantic Ocean. This is the closest distance to any Outstanding Florida Water. As such, the treated effluent will be diluted prior to its discharge into the Atlantic Ocean. (Permit Application, Testimony of Mele).

    
    

21. Respondent Peterson has provided Respondent DER reasonable assurances that the proposed facility, upon operation, will not violate the Department's rules relating to air, noise and water quality standards.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

23. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

24. The authority of the Respondent, Department of Environmental Regulation, is derived from Chapter 403, Florida Statutes and Rule Chapter 17, Florida Administrative Code. The Department of Environmental Regulation's authority to consider this permit application is based on Sections 403.061,

    403.087 and 403.088, Florida Statutes and Florida Administrative Code Rules 17- 3, 17-4, 17-6, 17-19 and 17-28.

    
    

25. Petitioners' timely requested a formal hearing in this matter as required pursuant to Rule 22I-6.04, Florida Administrative Code.

    
    

26. Competent and substantial evidence was offered herein to establish that the wastewater treatment plant proposed by applicant Peterson is designed in accordance with sound engineering practices within the meaning of 17- 6.07(1)(a), Florida Administrative Code; the design incorporates a proven treatment process and reliably meets effluent limitations within the meaning of Rule 17-6.070(1)(c)1, Florida Administrative Code; the facility is designed and located to minimize its adverse effects from odors, noise, aerosol drift and lighting within the meaning of Rules 17-6.070(2)(a), Florida Administrative Code.

    
    

27. Respondent Peterson has given Respondent Department of Environmental Regulation reasonable assurances that it will adhere to the required sampling schedules and parameters for monitoring effluent treatment at domestic water treatment plants for discharges to Class V wells within the meaning of Rules 17-

    28.55 and 17-19.05, Florida Administrative Code. Additionally, Respondent Peterson has given Respondent DER reasonable assurances that the monitoring requirements for the subject facility of the discharges to Class V wells will comply with applicable water quality standards as required pursuant to Rule 17- 28.54, Florida Administrative Code.

    
    

28. Respondent Peterson has provided Respondent Department of Environmental Regulation reasonable assurances that the Class V wells into which the effluent will be disposed have been designed and constructed for their intended use in accordance with good engineering practices as required pursuant to Rule 17-28.52(1), Florida Administrative Code.

    
    

29. Respondent, Peterson has provided Respondent, Department of Environmental Regulation, reasonable assurances that the waste water effluent

    that will be discharged to the Class V wells into Class G-III groundwaters will comply with the secondary treatment criteria embodied in Rule 17-6.060, Florida Administrative Code.

    
    

30. Respondent, Peterson has provided Respondent, DER with reasonable assurances that the proposed facility will satisfy the water quality criteria set forth in Rule 2/ 17-3.402 and therefore compliance with Rule 17-3.405 has been assured.

RECOMMENDATION

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

That Respondent, Department of Environmental Regulation enter a Final Order issuing Respondent, Robert Peterson, doing business as Peterson's Condominiums, a permit to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells with the conditions as set forth in the DER's "intent to issue" dated March 5, 1986.

RECOMMENDED this 1st day of December 1986 in Tallahassee, Florida.

JAMES E. BRADWELL

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 1st day of December 1986.

ENDNOTES

1/ This letter was submitted following the close of the hearing based on DER's Motion to Reopen the Evidence. The undersigned received the Objector's letter posthearing for the limited purpose of corroborating evidence received during the hearing by the Petitioners and Objectors to the effect that they protested DER's "intent to issue" a permit for the proposed project.

2/ All rule references are embodied in the Florida Administrative Code.

APPENDIX TO RECOMMENDED ORDER

IN CASE NO. 86-2079, 86-2080 AND 86-2212

Rulings on Petitioner Joseph W. McInerny's Proposed Findings of Fact.

Paragraph 7 substantially adopted. The remainder of Paragraph 7 is rejected inasmuch as Respondent DER presented evidence that the anticipated contiguous of the discharge would be diluted based on the distance the discharges would travel prior to reaching G-III waters.

Paragraph 8 rejected based on other evidence indicating that the samples submitted by Respondent were reliable as noted in Paragraphs 9 and 10 of the Recommended Order.

Paragraph 9 rejected for reasons stated in the paragraph next above.

Paragraph 10 rejected based on credible evidence introduced herein indicating that the discharges would be diluted and reasonable assurances were provided DER that water quality standards would be complied with.

Paragraph 11 rejected based on credible evidence which reveals that the impacts on receiving waters would be monitored as required by applicable regulations. (Paragraphs 11 and 12, Recommended Order).

Paragraph 12 rejected based on other credible evidence which indicated that all matters of concerns, noise, air and water criteria would be satisfied.

Paragraph 13 rejected based on credible evidence introduced herein which indicates that the subject treatment plant is reliable and will not cause air, noise or water pollution problems. (Recommended Order Paragraphs 16-21).

Paragraph 14 rejected based on other credible evidence indicating that the subject treatment plant will operate with efficiency and will not adversely impact air, noise and water quality in the Key Largo area.

Paragraph 15 rejected as irrelevant and not probative of the issues posed for decision herein.

Petitioner McInerny's Motion to Strike the affidavit of Thomas Eglip is denied for reasons stated in footnote 1 of the Recommended Order herein.

Rulings on Respondent Robert Peterson's Proposed Findings.

Respondent Peterson's counsel has submitted a closing argument requesting that proceduraly, the petitions were not timely filed and should therefore be dismissed. This request was denied inasmuch as Respondent, DER, afforded Petitioners a clear point of interest in these proceedings and the Petitions were timely filed pursuant to that opportunity afforded by Respondent, Department of Environmental Regulation.

COPIES FURNISHED:

William W. Deane, Esquire Hanley and Deane, P.A.

1700 9th Street North, Suite B St. Petersburg, Florida 33704

Linda L. Popp Rout 1, Box 43

Key Largo, Florida 33037

Eddie M. Ohi, Jr. 1223 Mockingbird Road

Key Largo, Florida 33037

Douglas H. McLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32340

Paul Jacobs, Esquire Marks, Aronovitz, & Leinoff

9200 South Dadeland Boulevard Suite 100 - Dadeland Tower Miami, Florida 33156

Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 86-002212

Orders for Case No: 86-002212