STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HY KOM DEVELOPMENT COMPANY, )

)

Petitioner, )

)

vs. ) CASE No. 89-2957

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondent, )

and )

)

MANASOTA-88, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. AYERS, held a formal hearing in the above- styled case on July 23, 1992 at Tampa, Florida.

APPEARANCES

For Petitioner: James W. Starns, Esquire

501 Goodlette Road Suite D-100-24 Naples, Florida 33940

For Respondent: W. Douglas Beason, Esquire

Assistant General Counsel Department of Environmental

Regulation

2600 Blairstone Road

Tallahassee, Florida 32399 2400

For Intervenor: Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701 STATEMENT OF THE ISSUES

Whether Petitioner was wrongfully denied a permit to construct and operate an Advanced waste water treatment plant on Snead Island, Manatee County, Florida.

PRELIMINARY STATEMENT

By Petition for an Administrative Determination received at the Department of Environmental Regulation (DER or Department) on May 11, 1989, Hy Kom

Development seeks an administrative hearing to challenge the denial by DER of its application for a permit to construct an Advanced waste water treatment plant at Sunset Point Beach Club located on Emerson Point, Snead Island, Manatee County, Florida.

This case was initially scheduled to be heard on October 19, 1989, was continued until November 16, 1989, was again continued sine die on November 6, 1989, was placed in abeyance August 21, 1990, and was rescheduled to be held July 23, 1992 and was held as scheduled.

At the commencement of the hearing on July 23, 1992 Petitioner's motion for a continuance was denied. Thereafter, a prehearing stipulation was received, Petitioner called four witnesses, Respondent called one witness and 13 exhibits were marked for identification. All were admitted except exhibits 3 and 8-13 which were never identified or offered into evidence. Exhibit 2 was admitted as the application submitted by Petitioner, but not for the truth of the hearsay contained therein not otherwise corroborated by admissible evidence.

At the conclusion of the hearing the parties were given ten days after the filing of the transcript to submit proposed recommended orders. Proposed findings submitted by Respondent are accepted. Those proposed findings not included below were deemed unnecessary to the conclusions reached. Proposed findings submitted by Petitioner are unnumbered; however, the first two pages are accepted up to the beginning of the last paragraph on page 2. That paragraph is rejected as unsupported by the evidence. The remaining portions of this proposed recommended order are rejected as constituting legal argument, uncorroborated hearsay evidence and the conclusion that Respondent failed to demonstrate the discharge of the effluent from this plant would degrade the admitting waters. Findings 1-7 below are copied from the prehearing stipulation. Having considered all evidence presented I submit the following:

FINDINGS OF FACT

1. On or about December 28, 1987 Hy Kom filed with the Department an application for a permit to construct a .0126 MGD Advanced Waste Water Treatment Plant on Emerson Point, Snead Island in Manatee County.

   
   

2. The proposed waste water treatment plant would discharge effluent into the waters of Terra Ceia Bay in Manatee County.

   
   

3. The proposed waste water treatment plant would discharge effluent into the waters of Tampa Bay in Manatee County.

   
   

4. The proposed waste water treatment plant would discharge effluent into the waters of Manatee River in Manatee County.

   
   

5. The waters of Terra Ceia Bay have been designated Outstanding Florida Waters (OFW) by the Department.

   
   

6. On or about April 27, 1989 the Department issued a Notice of Permit Denial concerning Hy Kom's permit application.

   
   

7. The parties stipulate the Intervenor, Manasota-88, has standing to intervene as a party Respondent and to object to the issuance of the permit.

   
   

8. Petitioner's evidence can best be summarized by what was not submitted. First, the expert witness called to identify the application had not prepared

   any part of the application or verified any of the studies presented therein. Similarly Petitioner's expert on the proposed treatment plant did not testify that Petitioner was committed to using this plant, or that the construction of the plant and the operation of the plant would comply with statutory and rule requirements.

   
   

9. The only witness called by Petitioner to testify to the effect the discharge from the proposed advanced waste water treatment plant would have on the receiving waters was also Respondent's expert; and this witness testified that the effluent discharge from this proposed plant would have an adverse effect on the receiving waters, would seriously degrade the receiving waters as a nursery habitat for both crustacea and fishes endemic to the area, and that no reasonable assurances that this would not happen were ever presented by the Petitioner.

   
   

10. This witness further testified that no discharge into these receiving waters would be acceptable not only because of the nitrogen level (which was the most significant reason for denying the permit) but also because even a discharge of absolutely pure water would upset the salinity of the receiving waters at the critical time the receiving waters act as a marine nursery.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Here Petitioner has the burden of proving its entitlement to the permit by a preponderance of the evidence. Florida Department of Transportation

    v. J.W.C. Co., Inc., 397 So.2d 778, 787 (Fla. 1st DCA 1987). Further, this is a de novo proceeding intended to formulate final agency action, not to review action taken earlier and preliminarily. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1 DCA 1981).

    
    

13. Rule 17-600.400, Florida Administrative Code (F.A.C.), requires new waste water treatment plants be designed in accordance with sound engineering practice. Petitioner submitted no evidence to meet this requirement. Rule 17- 4.070(1), F.A.C. requires the applicant for a permit to provide reasonable assurances that the proposed activity will not discharge, emit, or cause pollution in contravention of Department standards or rules.

    
    

14. Section 403.086(1)(b), Florida Statutes, requires any sanitary sewage facility discharging waste into Tampa Bay (or any tributary thereto) must provide waste water treatment as defined in Section 403.086(4)(a) and (b), Florida Statutes.

    
    

15. Section 403.086(4)(a) establishes limits for dissolved oxygen, suspended solids, total nitrogen, and phosphorous and subsection (b) required recovered water to receive a high level of disinfection. Petitioner submitted no admissible evidence that these requirements would be met.

    
    

16. Similarly no evidence was submitted that the plant site or construction of the plant would meet the requirements for protection from damage by a 100-year flood, or that the treatment is designed to remain fully operable and accessible during a 25-year flood as required by Rule 17-600.400(2)(c), F.A.C.

17. In summary, Petitioner has presented no evidence to prove that the discharge from the proposed advanced waste water treatment plant on Emerson Point, Snead Island, Manatee County would not adversely affect the receiving waters of Terra Ceia Bay, Tampa Bay, and Manatee River.

RECOMMENDATION

It is RECOMMENDED that a Final Order be entered denying the application of Hy Kom Development Company, for a permit to construct and operate an advanced waste water treatment facility at Emerson Point, Snead Island, Manatee County, Florida.

DONE and ORDERED this _15th_ day of September, 1992 in Tallahassee, Leon County, Florida.

COPIES FURNISHED: JAMES W. STARNS ESQ

501 GOODLETTE RD SUITE D-100-24 NAPLES FL 33940

W DOUGLAS BEASON ESQ ASST GENERAL COUNSEL

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this _15th_ day of September, 1992.

DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

THOMAS W REESE ESQ

123 EIGHTH ST N

ST PETERSBURG FL 33701

DANIEL H THOMPSON ESQ GENERAL COUNSEL

DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

CAROL BROWNER SECRETARY

DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-002957

Orders for Case No: 89-002957