STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TAMARON UTILITIES, INC. )
)
Petitioner, )
)
vs. ) CASE NO. 91-2968
)
STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on August 9 and 10, 1993 in Sarasota, Florida.
APPEARANCE
For Petitioner: Charles G. Stephens, Esquire
C. Robinson Hall, Esquire Enterprise Plaza, Suite 1516
101 E. Kennedy Blvd. Tampa, Florida 33602
For Respondent: Francine Ffolkes, Esquire
Office of the General Counsel Department of Environmental Protection 2600 BlairStone Road
Tallahassee, Florida 323499-2400 STATEMENT OF THE ISSUES
Whether the Petitioner's facility discharges to waters of the state within the regulatory jurisdiction of the Respondent under Sections 403.031 and 403.086, Florida Statutes.
Whether the Petitioner has provided reasonable assurances that its facility complies with the discharge permit requirement of Chapter 403, Florida Statutes, including Section 403.086, Florida Statutes.
PRELIMINARY STATEMENT
On September 5, 1990, the Petitioner, Tamaron Utilities, Inc. (Tamaron), applied to the Respondent, State of Florida Department of Environmental Regulation (Department) [now, Department of Environmental Protection] to renew its domestic wastewater treatment and disposal systems operation permit. On April 9, 1991, the Department issued a Notice of Permit Denial denying Tamaron's request for renewal of an operating permit for its wastewater treatment facility located in Sarasota County, Florida. Tamaron requested a formal administrative
hearing to contest the denial of its operating permit on April 23, 1991. By letter of transmittal dated May 13, 1991, this matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer and conduct of a hearing. This matter was originally scheduled for hearing on September 26, 1991. However, the parties jointly requested a continuance on the grounds that additional time was needed to explore the possibility of settlement. The motion was granted and the case placed in abeyance with a date certain for a status report. The parties continued to work toward a settlement but failed to timely respond to the order requiring a status report which resulted in the file of the Division of Administrative Hearings being closed.
The file was reopened on a joint motion and the matter proceeded forward. However, after a settlement was not forthcoming the matter went to hearing on August 9-10, 1993.
At the hearing, Tamaron presented the testimony of Livingstone Snell and William J. Murchie. Tamaron's exhibits 1, 1(A), 2-17, 17A, and 18, 19, and 21-
24 were received as evidence in this case. The Department presented the testimony of George Baragona, Edward Snipes, Jay Thabaraj, Kenneth Wall, Joe Squitieri and David Rhodes. The Department's exhibits 1, 4, 9, 11, 13, 14, 16, 17, 20, 22 and 25 were received as evidence in this case.
A transcript of this proceeding was filed with the Division of Administrative Hearings on August 31, 1993. A Request For Extension Of Time for filing proposed recommended order was filed by Tamaron without opposition from the Department. The motion was granted with the understanding that any time constraint for entering a Recommended Order imposed under Rule 28-5, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties timely filed their Proposed Recommended Orders under the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
The Tamaron wastewater treatment facility (facility), located at 3800 Gatewood Drive, Sarasota, Florida, serves the Tamaron residential subdivision which was originally developed by U. S. Homes Corporation in 1976. The subdivision presently consists of 499 homes and was completely built out in the mid-1980's.
The facility was originally owned and operated by U. S. Homes Corporation. Tamaron Utilities, a nonprofit entity comprised of the 499 homeowners, acquired the facility in November, 1987. At that time, the facility's existing operating permit was transferred to Tamaron Utilities. The facility is overseen by an elected board of volunteer homeowners.
The Department is the agency of the State of Florida that is authorized to regulate domestic wastewater treatment and disposal facilities and permit their construction and operation. It is the successor agency to the Department of Environmental Regulation.
By letter dated November 10, 1987, the Department notified Tamaron of the requirements of Chapter 87-303, Laws of Florida (Grizzle-Figg Amendment), which amended Section 403.086, Florida Statutes, and of the Department's
intention to modify Tamaron's operating permit to incorporate a schedule of compliance with Section 403.086, Florida Statutes, as amended by Chapter 87-303, Laws of Florida.
On August 23, 1988, an operating permit (D058-141783), which contained secondary water treatment requirements, was issued to the facility. Specific condition 7 of the permit required that the facility be in compliance with the Grizzle-Figg Amendment by October, 1990, or eliminate discharge to surface waters.
On September 5, 1990, Tamaron filed an application with the Department to renew its domestic waste water treatment and disposal systems operation permit. Tamaron did not consider its facility as discharging waste into one of the specifically named water bodies set forth in the Grizzle-Figg Amendment or to "water tributary thereto" and thereby required to meet the advanced waste treatment criteria set forth in the Grizzle-Figg Amendment. However, in an abundance of caution, Tamaron proceeded to bring its facility into compliance with the advanced waste treatment criteria as set forth in the Grizzle-Figg Amendment.
After numerous requests for additional information and several meetings between Tamaron and the Department, the Department issued its Notice of Permit Denial on April 9, 1991, asserting that Tamaron had not provided: (a) reasonable assurance that the requirements of Section 403.086(1)(c), Florida Statutes, mandating advanced waste treatment (AWT) before discharge to certain designated surface waters, would be met and; (b) reasonable assurance that the discharge to those certain designated surface waters would result in minimal negative impact as required by Section 403.086(5)(a), Florida Statutes. The facility continues to operate under its secondary treatment permit No. DO58-141783.
The facility consists of a wastewater treatment plant designed for secondary treatment, with tertiary filtration. The design capacity of the facility is 155,000 gallons per day (0.155MGD) with actual flows of slightly over 100,000 gallons per day (0.100MGD+). Three percolation ponds surround the facility comprising the primary effluent disposal method for the facility.
The Tamaron subdivision has a series of excavated surface water bodies (stormwater lakes), hydraulically connected, which eventually discharge at the northeast corner of the subdivision into Phillippi Creek. The direct path of surface water flow is from the subdivision's stormwater lakes to Phillippi Creek. These stormwater lakes are in multiple ownership.
Under Department policy, stormwater systems permitted by the Department, its predecessor DER, or a water management district solely as stormwater treatment facilities under Chapter 17-25, Florida Administrative Code, are not considered "waters of the State". However, stormwater systems built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, were considered "waters of the State" if they discharge more frequently than a twenty five year, twenty-four hour storm event. See Petitioner's exhibits 13 & 15. Tamaron's stormwater system was built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, and was designed to discharge at a ten year, twenty-four hour storm event which is more frequent than a twenty five year, twenty-four hour storm event. Discharge of water into Phillippi Creek from the subdivision's stormwater lakes is fairly frequent; however, the volume of the discharge is low.
Phillippi Creek is a natural surface water which eventually flows into Roberts Bay. Roberts Bay is a specifically named water body in the Grizzle-Figg Amendment (Section 403.086(1)(c), Florida Statutes).
Since September, 1989, Tamaron has retained William Murchie, P.E. of AM Engineering, to evaluate the design and operation of the facility in order to comply with appropriate regulatory requirements.
The facility provides biological treatment through a contact stabilization utilizing an activated sludge. This process typically provides high quality advanced secondary biological treatment.
A chemical feed tank system utilizing ferrous sulfate was added to the facility several years ago to chemically precipitate out total phosphorus to meet the advanced waste treatment requirements.
High-level disinfection is achieved in the large chlorine contact chamber and through two tertiary filters. At the design flow of 0.155MGD, the chlorine contact chamber provides nearly 80 minutes of contact time, while actual contact time for existing flows, not including time in filters, is calculated at 110 minutes.
Upon leaving the chlorine contact chamber and the biological treatment components of the facility, the chlorinated effluent is directed through two tertiary filters to reduce the biochemical oxygen demand (BOD) and total suspended solids (TSS).
After the tertiary filters, the effluent passes through the sample block where it is sampled for TSS, BOD and chlorine and is then piped sequentially into the first, second and third percolation ponds. The percolation ponds span two acres and provide residence time of 35 to 45 days, during which time the effluent is further biologically treated and nitrogen is reduced.
From the percolation ponds, the effluent is pumped into a low pressure system which uniformly distributes effluent over two nitrogen reduction filters. The nitrogen reduction filters are located north of the plant and are immediately adjacent to one of the subdivision's stormwater lakes.
The nitrogen reduction filters consist of deep sand beds covered with Bermuda grass to provide high nitrogen uptake. The irrigation of the two nitrogen reduction filters is alternated every half day.
These nitrogen reduction systems were modified in October/November, 1990, by adding 3 to 3 1/2 feet of clean sand with a permeability rate of 28 feet per day, planting Bermuda grass, and installing an irrigation/distribution system. These filters replaced two sand pits with shallow layers of very coarse sand, after initial testing demonstrated the sand pits to be inadequate in removing nutrients consistent with statutory requirements.
In January, 1992, an underdrain system utilizing perforated pipe was installed in the nitrogen reduction filters to create an aerobic zone and to provide a representative sample port after nutrient reduction in the filters. This sample port, used for the biweekly monitoring, consists of a single solid pipe, that collects effluent from the perforated pipes, with a tap to prevent discharge into the adjacent stormwater lake, except during sampling events. The
biweekly sampling event results in effluent being discharged from the pipe for approximately 30 minutes to flush the pipe so as to get a proper sample.
The underdrain sampling port at the nitrogen reduction filters replaced two earlier monitor wells between the nitrogen reduction filter and the stormwater pond, which proved ineffective because of their location.
The perforated underdrains are situated in filter bed sand of medium grain size with a permeability rate 100 feet per day and located below 3 - 3 1/2 feet of clean sand with a permeability rate of 28 feet per day and above very permeable layers of sand, stone and coarse shell. (See Tamaron's exhibit 23 and Department's exhibit 14) The very permeable layers of sand, coarse shell, the perforated pipe and the single solid pipe are all located above the ground water table.
Since the perforated pipe and sample port are both located above the ground water level and the surface of the adjacent stormwater lake, it is unlikely that the effluent sample taken from the sample port would be influenced by the ground water or a back flow of water from the adjacent stormwater lake.
The coarse shell layer situated below the nitrogen reduction filters extends to the edge of the adjacent stormwater lake. Therefore, the effluent, other than the effluent trapped in the perforated pipe and carried to the sample port, that is irrigated onto the nitrogen reduction filters passes through the sand and into the coarse shell layer. The effluent is then transported laterally through the coarse shell layer to the underground edge of the adjacent stormwater lake where there is a subsurface discharge into the adjacent stormwater lake.
Since the discharge to the stormwater lakes is primarily subsurface in nature, the logical compliance point to measure effluent parameters would be the underground sample port which collects the effluent prior to subsurface discharge into the stormwater lake. See Petitioner's exhibit 15.
The direction of ground water flow at the facility is towards the north to the adjacent stormwater lakes as evidenced by the hydraulic gradient of the site determined using ground water table elevations.
The location for sampling effluent from the facility for compliance with secondary standards was described in Specific Condition 5 of Tamaron's previous permit No. D058-141783 dated August 23, 1988. Specific Condition 5 states that the discharge from the chlorine contact chamber shall be sampled in accordance with Chapter 17-19, Florida Administrative Code, (now Chapter 17-601, Florida Administrative Code), for compliance with the stated secondary limits.
The facility's tertiary filters are located after the chlorine contact chamber. Tamaron samples effluent for compliance with secondary standards (BOD,TSS, chlorine) at the sampling box after disinfection and tertiary filtration.
Tertiary filtration is designed to achieve a more efficient removal of TSS and BOD. The resulting effluent is usually of higher quality than secondarily treated effluent. A secondary plant with tertiary filtration is referred to as an "advanced secondary treatment" plant.
Data presented by Tamaron titled Tamaron 1991-1993 Data On FDER Permit Compliance (Tamaron's exhibit 17, page 1 of 2) shows reported values, sampled
after tertiary filtration at the sample box, which suggest that secondary treatment parameters, including fecal coliform, are not being exceeded. The data actually shows a very high removal rate for the parameters sampled.
The United States Environmental Protection Agency issued a National Pollutant Discharge Elimination System (NPDES) permit, number FL0042811, to Tamaron for the facility with an effective date of June 1, 1991, which authorized Tamaron to discharge from the facility to the receiving waters named Phillippi Creek to Roberts Bay in accordance with the effluent limitation, monitoring requirements and other conditions set forth in the permit.
Since the facility was located in the Grizzle-Figg Amendment area of Florida certain changes were made from the draft permit to the final permit. Those changes appear in the Amendment To The Statement Of Basis At The Time Of Final Permit Issuance which is made a part of the final permit. The amendment provides for changes in Part I, Effluent Limitations and Monitoring Requirements. These changes, among other things, require that the Grizzle-Figg Amendment annual limits of 5 mg/l BOD, 5mg/l TSS, 3mg/l total nitrogen and 1mg/l total phosphorus be added to the effluent limits to adequately maintain water quality standards, and added monitoring requirements and measurement frequency regulations to give the basis for permit limits and conditions in accordance with Chapters 17-302, 17-600 and 17-601, Florida Administrative Code.
Data presented by Tamaron titled Tamaron 1991-1993 Data On NPDES Permit Compliance (Tamaron's exhibit 17, page 2 of 2) show reported values sampled after nitrogen reduction filters which suggest that the maximum values for AWT parameters, including fecal coliform, are not being exceeded, particularly after January, 1992, when Tamaron began sampling effluent collected by the perforated underdrains at the sample port.
Tamaron has been monitoring and reporting compliance under its final NPDES permit and providing copies to the Department. There was no evidence that Tamaron was ever in violation of its NPDES permit.
Tamaron submitted documentation to the Department with its permit application that demonstrated high-level disinfection within the facility was being achieved. However, TSS was being sampled after the application of the disinfectant. Using this procedure, the facility continued to achieve high- level disinfection until the permit denial. After the permit denial, the facility resumed basic disinfection which was required under Tamaron's permit for secondary treatment. This same data indicates that there was compliance with the requirements for fecal coliform.
The record is not clear as to the frequency and number of samples taken to provide the data for reporting compliance with the NPDES permit and the data presented in Petitioner's exhibit 17, page 2 of 2. However, there was no evidence, other than sampling for TSS after the disinfectant was added, that Tamaron was not complying with its NPDES Permit that required, among other things, that the monitoring requirements and measurement frequency of the Department's rules and regulations be followed by Tamaron.
Tamaron has modified and upgraded the facility in order to achieve a treatment process which will produce effluent of a quality for discharge under the Grizzle-Figg Amendment. Tamaron has provided reasonable assurances, although not absolute assurance, that the facility can comply with the discharge permit requirements of Chapter 403, Florida Statutes, including Section 403.086, Florida Statutes, notwithstanding the testimony of Jay Thabaraj to the contrary
concerning Tamaron's sampling technique and its method of obtaining high-level disinfection which can be addressed as a specific condition, if necessary.
Studies conducted by the Tamaron's engineer included in Petitioner's exhibit 21 indicates that there was no adverse impact to the stormwater lakes from the facility's wastewater treatment and disposal system. Tamaron has provided reasonable assurances that the point of discharge is a reasonably access point, where such discharge results only in minimal negative impact.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
The Department has jurisdiction over the facility under Chapter 403, Florida Statutes, wherein criteria and standards for issuing or denying operating permits are set forth as well as in the rules promulgated thereunder. However, the Department has the burden to show that the area over which it seeks to exercise jurisdiction falls within the scope of Chapter 403, Florida Statutes. Therefore, in an evidentiary hearing the Department has the initial burden of making a prima facie factual showing of jurisdiction. Then the burden of going forward shifts to the party alleging the area to be non-jurisdictional to rebut the Department's prima facie showing with factual evidence of equivalent quality. Florida Department of Transportation v. J.W.C. Co. Inc.,
396 So.2d 778 (1DCA Fla. 1981). In a permit denial case, such as the instant case, once the issue of jurisdiction is resolved, the applicant has the ultimate burden to establish by a preponderance of the evidence entitlement to the requested permit. Florida Department of Transportation v. J.W.C. Co. Inc., 396 So. 2d 778 (1 DCA Fla. 1981); Rule 17-103.130, Florida Administrative Code; See also, Young v. State, Department of Community Affairs, 625 So.2d 831 (Fla. 1993).
Tamaron does not dispute the Department's jurisdiction over it's facility under Chapter 403, Florida Statutes, to require the facility to meet secondary waste treatment criteria in order to be permitted. However, Tamaron does dispute that its facility is discharging waste into a specific body water, or "water tributary thereto", named in Section 403.086(1)(c), Florida Statutes, and is thereby required to provide the Department with reasonable assurances that it can meet the advanced waste treatment criteria set forth in Section 403.086(4), Florida Statutes, before discharge, in order to be permitted. The Department concedes that it has the initial burden of making a prima facie factual showing that Tamaron's facility is discharging waste into a specific body of water, or "water tributary thereto" named in Section 403.086(1)(c), Florida Statutes, to establish its jurisdiction over Tamaron's facility to require that it provide the Department with reasonable assurances that the facility can meet the advanced waste treatment criteria set forth in Section 403.086(4), Florida Statutes, in order to be permitted.
Section 403.061, Florida Statutes, grants the Department the power and duty to control and prohibit pollution of air and water in accordance with the law and the rules and regulations adopted by the Department.
Section 403.031(13), Florida Statutes, defines waters and in pertinent part provides:
"Waters" include, but are not limited to, rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property. . . .
(Emphasis supplied)
Rule 17.301.200(7), Florida Administrative Code, defines surface waters as follows:
"Surface Waters" means water upon the surface of the earth, whether contained in bounds created naturally or artificially or diffused.
Water from natural springs shall be classified as surface water when it exits from the spring onto the earth's surface. (Emphasis supplied)
Tamaron subdivision's stormwater lakes are surface water bodies as defined by statute and Department rule. Therefore, the Department is authorized to exercise regulatory control over any and all discharge of wastes which may pollute or tend to pollute the stormwater lakes.
In 1987 the Legislature enacted Chapter 87-303, Laws of Florida, commonly referred to as the "Grizzle-Figg Amendment", which amended Section 403.086, Florida Statutes. The Department relies upon the amendment of Section 403.086(1)(c), Florida Statutes, as its authority for jurisdiction over Tamaron's facility, which provides as follows:
(c) Notwithstanding any other provisions of this chapter or chapter 373, facilities for sanitary sewage disposal may not dispose of any wastes into Old Tampa Bay, Tampa Bay, Hillsborough Bay, Boca Ciega Bay, St. Joseph Sound, Clearwater Bay, Sarasota Bay, Little Sarasota Bay, Roberts Bay, Lemon Bay, or Charlotte Harbor Bay, or into any river, stream, channel, canal, bay, bayou, sound, or other water tributary thereto, without providing advanced waste treatment, as defined in subsection (4), approved by the Department of Environmental Regulation....
(Emphasis supplied).
The Department takes the position that because there is a discharge (underground or surface) of effluent from the facility's percolation ponds into the stormwater lakes that it has jurisdiction under Section 403.086, Florida Statutes, to require that the effluent being discharged from the facility meet the more stringent advanced waste treatment criteria before discharge. The basis for the Department's position is that the Department considers the stormwater lakes as "other water tributary thereto" under Section 403.086(1)(c), Florida Statutes, because of their connection to Phillippi Creek, which flows directly into Roberts Bay.
It is clear from a review of the amending and previous language of Section 403.086(1)(c), Florida Statutes, that the inclusion of the term "other water" was to encompass all other types of water that had not been specifically named (e.g. river, stream, etc.) that may be tributary to those specifically named bodies of water. The term "tributary thereto" has not been defined by statute or rule. Therefore, we must look to the ordinary meaning of the term. The World Book Dictionary, 1973 Edition, defines tributary as "n. 1. a stream that flows into a larger stream or body of water: The Ohio River is a tributary to the Mississippi River." adj. 1. (of a river or stream) flowing into a larger stream or body of water." The World Book Dictionary, 1973 Edition, defines the word "thereto" as "to that, to it: The castle stands on a hill, and the road thereto is steep and rough." Therefore, it is clear that the term "tributary thereto" means that the tributary (stream, river or other water) is directly connected (flowing into) one of the specifically named bodies of water (Roberts Bay) and does not include waters such as Tamaron's stormwater lakes into which the facility is discharging but which do not flow directly into Roberts Bay.
The Department's interpretation of "other waters tributary thereto" is not a reasonable interpretation. Under the Department's interpretation, the Department would have jurisdiction to require compliance with the advanced waste treatment criteria under Section 403.086(4), Florida Statutes, where waste was discharged into water that does not flow directly into a named body of water but flows into water that may eventually flow into a named body of water, regardless of how far (100, 200, 300 miles) the initial water had to travel to reach the named body of water, or regardless of how many different streams, rivers, bays, etc. the initial water passed through to reach the named body of water. Under the Department's interpretation, waste discharged into a stream 300 miles from a named body of water, with several streams, etc., intervening, would have to meet the same standards at the point of discharge as the waste discharged directly into the named body of water. A review of the Grizzle-Figg Amendment, including the Preamble, does not reveal that the Legislature intended such a result.
Having concluded that Tamaron is not discharging waste into Roberts Bay or "waters tributary thereto", the Department lacks jurisdiction to require that waste being discharge by the facility into Tamaron's stormwater lakes meet the criteria of advanced waste treatment set forth in Section 403.086(4), Florida Statutes, before discharge.
However, assuming arguendo that the Legislature intended such a result and that the Department's interpretation is correct, then the Department's position is that Tamaron has failed to present sufficient evidence to establish facts to show that it has given the Department reasonable assurances that the waste being discharged into the stormwater lakes meets the advanced waste treatment criteria set forth in Section 403.086(4), Florida Statutes, and that the discharge point is not at a reasonably accessible point where such discharge results in minimal negative impact.
Section 403.086(4)(5) and (6), Florida Statutes, as amended, provides in pertinent part as follows:
For purposes of this section, the term "advanced waste treatment" means that treatment which will provide a recovered water product that:
Contains not more, on a permitted annual average basis, than the following concentrations:
Biochemical Oxygen Demand. 5mg/l
Suspended Solids. 5mg/l
Total Nitrogen, expressed as N. 5mg/l
Total Phosphorus, expressed as P. 5mg/l
Has received high level disinfection, defined by rule of the Department of Environmental Regulation.
(5)(a) Notwithstanding any other provisions of this chapter or chapter 373, when a recovered water product has been established to be in compliance with the standards set forth in subsection (4), that water shall be presumed to be allowable, and its discharge shall be permitted in the waters described in
paragraph (c) of subsection (1) at a reasonably accessible point where such discharge results in minimal negative impact. . . .
(Emphasis supplied)
(6). . . Facilities that do not meet the standards of subsections (4) and (5) as of July 10, 1987, may be permitted to discharge under existing law until October 1, 1990. On and after October 1, 1990, all of the facilities covered in paragraph (c) of subsection (1) shall be required to meet the
standards set forth in subsections (4) and (5).
The Department contends that since Tamaron is required to meet treatment standards more stringent than secondary, it must sample in accordance with Rule 17-600.740(1)(b)2., Florida Administrative Code, which provides in pertinent part as follows:
(1). . .
(b). . .
2. In order to determine compliance of a domestic wastewater facility with treatment standards more stringent than secondary as specified for additional levels of treatment
. . ., the following operational criteria shall be applicable.
. . .
The arithmetic mean of the pollutant values for a minimum of four reclaimed water or effluent samples each collected (whether grab or composite technique is used) on a separate day during a period of 30 consecutive days (monthly) shall not exceed one and one-quarter times the design concentration for the reclaimed water or effluent.
The arithmetic mean of the pollutant values for a minimum of two reclaimed water of effluent samples each collected (whether grab or composite technique is used) on a separate day during a period of 7 consecutive days (weekly) shall not exceed one and one-half times the design concentration specified for
the reclaimed water or effluent.
Maximum-permissible pollutant concentrations in any reclaimed water or effluent grab sample shall not exceed two times the design concentration specified for the reclaimed water or effluent.
(Emphasis supplied)
It is not entirely clear from the record, but it appears that the Department does not challenge the data presented by Tamaron, per se, but contends that it is not clear from the way the data was reported whether Tamaron complied with Rule 17-600.740(1)(b)2, Florida Administrative Code, notwithstanding that Tamaron was required under its NPDES Permit to sample in accordance with that rule. Nevertheless, this is a matter that the Department should be able to resolve with a specific condition which sets forth in detail how sampling is to be accomplished. However, the data presented by Tamaron does indicate that the waste being discharged into the stormwater lakes by the facility, at the point of discharge, does not exceed the parameters established for advanced waste treatment, particularly since January, 1992.
Rule 17-600.440, Florida Administrative Code, provides in pertinent part as follows:
(5) High-level disinfection
Facilities to provide high-level disinfection shall include TSS control (beyond secondary treatment levels) to maximize disinfection effectiveness and shall be designed to result in a reclaimed water or effluent in which fecal coliform values (per 100 mL of sample) are below detectable limits, . . .
Where chlorine is used for disinfection, the design shall include provisions for rapid and uniform mixing; and a total chlorine residual of at least 1.0 milligram per liter shall be maintained at all times. The minimum acceptable contact time shall be 15 minutes at the peak hourly flow. . . .
* * *
Facilities shall be designed to reduce TSS to 5.0 milligrams per liter or less before the application of the disinfectant. This requirement does not preclude an additional application of disinfectant prior to filtration for the purpose of improving filter performance. (Emphasis supplied)
To determine compliance of a domestic wastewater facility with the high-level disinfection level, the following operational criteria (using MF or equivalent MPN methods) shall be applicable.
* * *
3. Any one sample shall not exceed 5.0 milligrams per liter of TSS at a point before application of the disinfectant. (Emphasis supplied)
There is no dispute that the facility is testing for TSS after the application of disinfectant rather that before the application of disinfectant. However, this facility was designed and permitted for basic disinfection under Rule 17-600.440(4), Florida Administrative Code, which does not appear to require testing for TSS prior to application of the disinfectant. Apparently, the purpose of testing prior to application of the disinfectant is to "maximize disinfection effectiveness" that will result in effluent in which fecal coliform values are below detectable limits. From the data presented, it appears that the facility is achieving the required fecal coliform values and is not exceeding the parameters of chlorine residuals prior to discharge into the stormwater lakes. While there may be some more specific reason for testing TSS prior to the application of the disinfectant, there should be some specific condition, short of a total redesign of the facility, which would accomplish the same result. In fact, it appears that result to be accomplished by prior application of the disinfectant has been accomplished by Tamaron, if its data is to be given any credence.
While Tamaron has nor given the Department absolute assurances, it has given reasonable assurances, that the facility can meet the requirements of advanced waste treatment set forth in Section 403.086(4), Florida Statutes, and the minimal negative impact requirement under Section 403.086(5), Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Tamaron an operating permit for its facility as secondary treatment facility. In the alternative, that the Department enter a final order granting Tamaron an operating permit for its facility that requires compliance with the advanced waste treatment criteria set forth in Section 403.086(4), Florida Statutes, that, in addition to any general or specific conditions that are normally required, contains specific conditions that: (a) contains specific instructions on sampling technique, sampling frequency and reporting as set forth in Rule 17- 740(1)(b)2., Florida Administrative Code, and (b) sets forth compliance with high-level disinfection, with a time limit for compliance, that accomplishes the intent of the rule, if not the strict letter of the rule, without total redesign of the facility.
DONE AND ENTERED this 3rd day of May, 1994, in Tallahassee, Florida.
WILLIAM R. CAVE
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 3rd day of May, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2968
The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.
Petitioner, Tamaron's Proposed Findings of Fact:
The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(5,6); 5(6); 6(7); 8(12); 10(8); 11-12(13-25,38); 13(31-34); 14(8); 15(13); 16(14); 17-18(15); 19(36); 20(16); 21(17); 22(18); 23(19); 24(20); 25(21);26(22); 32(32,7); 33(33); 34(32,32); 36(31); 39-40(34); 41(36); 42- 43(34); 44(35); 47(4); and 51(10).
Proposed findings of fact 27-31, and 35 are conclusions of law rather than findings of fact..
Proposed findings of fact 45, 46, 48-50, 56, 57, 59, and 61-72 are arguments rather than findings of fact.
Proposed findings of fact 7, 9, 37, 38, 52-55, 58 and 60 are neither material nor relevant.
Respondent, Department's Proposed Findings of Fact:
The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,6); 2(2); 3(4,10); 5(9); 6(9,10); 8(11); 9-17(18-27); 18(8); 19(13); 20(5); 21(17); 22(30); 23(31); 24(14); 25(17); 26(18-23); 27(34); and 32(35,38).
Proposed finding of fact 4 is neither material nor relevant but see Findings of Fact 18-25.
Proposed findings of fact 7, 31 and 33 are arguments rather than findings of fact.
Proposed findings of fact 28-30 are conclusions of law rather than findings of fact.
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Charles G. Stephens, Esquire
C. Robinson Hall, Esquire Enterprise Plaza, Suite 1516
101 E. Kennedy Blvd.
Tampa, Florida 33602
Francine Ffolkes, Esquire Office of General Counsel
Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 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.
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AGENCY FINAL ORDER
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STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
TAMARON UTILITIES, INC.,
Petitioner,
vs. OGC Case No. 91-0957
DOAH Case No. 91-2968
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/
FINAL ORDER
On May 3, 1994, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Petitioner, TAMARON UTILITIES, INC. (hereafter "Tamaron"), and to the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, formerly known as the Department of Environmental Regulation (hereafter "Department"). A copy of the Recommended Order is attached hereto as Exhibit A.
The Department timely filed its Exceptions to the Recommended Order on May 18, 1994. Tamaron served its Response to Exceptions to Hearing Officer's Recommended Order on May 27, 1994. The matter is now before the Secretary of the Department for final agency action.
BACKGROUND
The following background facts and legal and procedural matters are undisputed in this proceeding. The Tamaron wastewater treatment facility (facility), located at 3800 Gatewood Drive, Sarasota, Florida, serves the Tamaron residential subdivision originally developed by U.S. Homes Corporation in 1976. The subdivision presently consists of 499 homes and was completely built out in the mid-1980's. The facility was originally owned and operated by
U.S. Homes Corporation, but was acquired in November of 1987 by Tamaron Utilities, a nonprofit entity comprised of the 499 Tamaron subdivision homeowners. The facility's existing operating permit issued by the Department was transferred to Tamaron Utilities upon its acquisition of the facility in 1987. The facility is currently overseen by an elected board of volunteer homeowners at the Tamaron subdivision.
In November of 1987, the Department wrote a letter informing Tamaron of the Legislature's enactment of Chapter 87-303, Laws of Florida (hereafter "Grizzle- Figg Amendment"). The Grizzle-Figg Amendment modified portions of Section 403.086, Florida Statutes, dealing with advanced waste treatment requirements.
In this letter, Tamaron was notified of the Department's intention to modify Tamaron's facility operating permit to incorporate a schedule of compliance with the advanced waste treatment requirements of Section 403.086, Florida Statutes, as modified by the Grizzle-Figg Amendment. (Pet. Ex. 1A)
On August 23, 1988, an operating permit (DO58-141783) was issued to the facility containing secondary water treatment requirements. Specific condition
7 of the permit required that the facility be in compliance with the advanced waste treatment requirements of the Grizzle-Figg Amendment by October, 1990, or eliminate discharge to surface waters. (Pet. Ex. 19, page 3)
Tamaron's facility continues to operate under its secondary treatment permit No. DO58-141783. The facility consists of a wastewater treatment plant designed for secondary treatment, with tertiary filtration. The design capacity of the facility is 155,000 gallons per day (0.155 MGD) with actual flows of slightly over 100,000 gallons per day (0.100 MGD+). The treated effluent is piped sequentially through a series of three surrounding percolation ponds which comprise the primary effluent disposal method for the facility. (Pet. Ex. 11 and 22)
The effluent is then pumped from the northernmost percolation pond into two gravity filter beds (sand pits) which function as nitrogen reduction filters. (Pet. Ex. 22, 23; Resp. Ex 14) These two nitrogen reduction filters are located north of the Tamaron plant and are immediately adjacent to one of the subdivision's stormwater lakes. (Pet. Ex. 11 and 23) Effluent collected by the perforated underdrain system underlying the nitrogen reduction filters is discharged directly into the adjacent stormwater lake through a single pipe at least on a biweekly basis during monitoring and sampling activities. There is also a subsurface discharge of effluent to the adjacent stormwater lake through a permeable coarse shell layer underlying the nitrogen filter beds and extending to the edge of the lake. (Pet. Ex. 7, 23; Resp. Ex. 11)
Under Department policy, stormwater systems built prior to the adoption of the Chapter 17-25, Florida Administrative Code, permitting requirements are considered "waters of the State" if they discharge more frequently than a twenty-five year, twenty- four hour storm event. Tamaron's stormwater system was built prior to the adoption of the Chapter 17-25 permitting requirements, and was designed to discharge at a ten year, twenty-four hour storm event.
Thus, Tamaron's stormwater lakes are deemed to be "waters of the State" by the Department. These stormwater lakes are in multiple ownership by the Tamaron subdivision homeowners.
Tamaron's stormwater lakes are hydraulically connected and frequently discharge during heavy rains into Phillippi Creek at the northeast corner of the subdivision. (Pet. Ex. 11) The direct path of surface water flow in the Tamaron subdivision is from these stormwater lakes to Phillippi Creek.
Phillippi Creek is a natural surface water tributary which eventually flows into Roberts Bay. Roberts Bay is a specifically named water body in Section 403.086(1)(c), Florida Statutes.
On September 5, 1990, Tamaron filed an application with the Department to renew its domestic wastewater treatment and disposal systems operating permit. (Resp. Ex. 16) Tamaron did not consider its facility to be discharging waste into one of the specifically named water bodies set forth in the Grizzle-Figg Amendment or to a "water tributary thereto" and therefore contended that it was not required to meet the advanced waste treatment criteria set forth in the Grizzle-Figg Amendment. After various requests for additional information and several meetings with Tamaron, the Department issued its Notice of Permit Denial on April 9, 1991.
The Notice of Permit Denial asserted that Tamaron had not provided: (a) reasonable assurance that the requirements of Section 403.086(1)(c), Florida Statutes, mandating advanced waste treatment (AWT) before discharge to certain designated surface waters, would be met and; (b) reasonable assurance that the discharge to those certain designated surface waters would result in minimal negative impact as required by Section 403.086(5)(a), Florida Statutes. (Respondent's Ex. 17)
Tamaron filed a petition on April 23, 1991, challenging the Department's notice of intent to deny its request for the renewal of the facility operating permit. Tamaron's petition was forwarded to DOAH for the assignment of a hearing officer to conduct a formal hearing. At the request of the parties, this case was subsequently placed in abeyance in order to explore the possibility of settlement; however, the settlement negotiations between the parties ultimately failed. Consequently, a formal hearing was held in this case on August 9-10, 1993, in Sarasota, Florida, before DOAH Hearing Officer William
R. Cave (hereafter "Hearing Officer"). The testimony of a total of eight witnesses and various exhibits were admitted into evidence at the final hearing on behalf of Tamaron and the Department.
The Hearing Officer concluded in paragraph 51 of the Recommended Order that Tamaron's facility "is not discharging into Roberts Bay or into any stream or other waters tributary thereto." The Hearing Officer further concluded that the Department "lacks jurisdiction to require that waste being discharged by the facility into Tamaron's stormwater lakes meet the criteria of advanced waste treatment set forth in Section 403.086(4), Florida Statutes, before discharge."
The Hearing Officer reached an alternative conclusion in paragraph 58 of the Recommended Order that, "[w]hile Tamaron has not give the Department absolute assurances, it has given reasonable assurances, that the facility can meet the requirements of advanced waste treatment under Section 403.086(4), Florida Statutes, and the minimal negative impact requirement under Section 403.086(5), Florida Statutes." The Hearing Officer ultimately made alternative recommendations which are set forth in full as follows:
Preface
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Tamaron an operating permit for its facility as [a] secondary treatment facility. In the alternative, that the Department enter a final order granting Tamaron an operating permit for its facility that requires compliance with the advanced waste treatment criteria set forth in Section 403.086(4), Florida Statutes, that, in addition to any general or specific conditions that are normally required, contains specific conditions that: (a) contains specific instructions on sampling technique, sampling frequency and reporting as set forth in Rule 17-740(1)(b)2., Florida Administrative Code, and (b) sets forth compliance with high-level disinfection, with a time limit for compliance, that accomplishes the intent of the rule, if not the strict letter of the rule, without total redesign of the facility.
RULINGS ON THE DEPARTMENT'S EXCEPTIONS
The Department filed its Exceptions to the Recommended Order disputing portions of the Hearing Officer's findings of fact, conclusions of law and recommendations. As a preface to my rulings on the various exceptions, it is appropriate to comment on the standard of review imposed by law on an agency in reviewing recommended orders submitted by DOAH hearing officers.
Under s. 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, g, Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987).
The agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are matters within the province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277 (Fla. 1st DCA 1985). Consequently, if the record of a formal hearing conducted by DOAH discloses any competent, substantial evidence to support a finding of fact made by a hearing officer, the reviewing agency is bound by such finding in its review of a recommended order. Florida Department of Business Regulation v.
Bradley, supra, at 1123. At the review level, however, the agency head is free to exercise his or her judgment and reject the Hearing Officer's conclusions of law. See, e.g., MacPherson v. School Bd. of Monroe County, 505 So. 2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So. 2d
478 (Fla. 2d DCA 1985); Alles v. Dept. of Professional Regulation, 423 So. 2d 624 (Fla. 5th DCA 1982).
Exception A. GRIZZLE-FIGG
In exception A., the Department takes issue with the conclusions of law in paragraphs 49 through 51 of the Recommended Order, wherein the Hearing Officer construed the statutory advanced waste treatment provisions of Section 403.086, Florida Statutes, as modified by the Grizzle-Figg Amendment, as being inapplicable to Tamaron's facility. The Department notes in its exceptions that the Hearing Officer's conclusions of law 49-51 are seemingly inconsistent with his prior unchallenged findings and conclusions that:
After the effluent from the facility passes through the three percolation ponds, it is then transported laterally underground through a coarse shell layer to an adjacent stormwater lake where there is a subsurface discharge into the adjacent stormwater lake. (Rec. Order para. 25)
Tamaron subdivision's stormwater lakes are surface water bodies as defined by statute and Department rule. Therefore, the Department is authorized to exercise regulatory control over any and all discharge of wastes which may pollute or tend to pollute the stormwater lakes. (Rec. Order Para. 46)
The series of stormwater lakes at Tamaron subdivision are hydraulically connected-and eventually discharge at the northeast corner of the subdivision into Phillippi Creek during stormwater events, and the direct path of the surface water flow is from these stormwater lakes to Phillippi Creek. (Rec. Order para. 9)
Discharge from Tamaron's stormwater lakes into Phillippi Creek is fairly frequent, but the volume of discharge is low. (Rec. Order para. 10)
Phillippi Creek is a natural surface water which eventually flows into Roberts Bay, a specifically named water body in Section 403.086(1)(c), Florida Statutes. (Rec. Order para. 11)
One of the significant modifications made by the Grizzle- Figg Amendment to Section 403.086(1)(c), Florida Statutes, was to expand the advanced waste treatment jurisdiction of the Department to specifically include rivers, streams, channels, canals or other water tributaries to Roberts Bay and the other designated bays named in this statutory subsection. (emphasis supplied) The above-listed unchallenged findings and conclusions of the Hearing Officer lead unavoidably to the legal conclusion that Tamaron's facility does frequently discharge into a tributary stream (Phillippi Creek) of Roberts Bay, thereby bringing the facility within the Department's advanced waste treatment jurisdiction under the Grizzle-Figg Amendment. 1/
The Hearing Officer concluded that the Department's interpretation of advanced waste treatment jurisdiction over Tamaron's facility under the Grizzle- Figg amendment "is not a reasonable interpretation." (Rec. Order para. 50)
This conclusion is based in large part on his assumption, set forth in paragraph 49, that the facility would have to discharge directly into Phillippi Creek, rather than indirectly through the series of stormwater lakes as the evidence at the hearing had established. However, there are no provisions in Section 403.086, Florida Statutes, as modified by the Grizzle-Figg Amendment, that expressly or implicitly limit advanced waste treatment jurisdiction to facilities discharging directly into a stream or other tributary of a named water body.
A similar restrictive construction of a statutory usage of the term "tributary" in the Rivers and Harbors Act of 1899 was summarily rejected in the water pollution case of United States v. Hercules, Inc. Sunflower Army Ammunition Plant, 335 F. Supp. 102 (D. Kan. 1971), wherein the federal court concluded as follows:
The defendant next makes a motion to dismiss on the ground that, if any ammonia was dumped into a water-course, it was dumped into a tributary of a tributary of a navigable water and not the "tributary of a navigable water" as stated in the statute.
This contention borders on the frivolous.
Defendant argues that the words of the statute should be interpreted in the ordinary every day sense. This Court agrees. A tributary is defined in Bouvier, Dictionary of Law Vol. II,
p. 384 (5th ed.); Black's Law Dictionary p. 1677 (4th ed.), as "all streams flowing directly or indirectly into a river."
As stated in the government's brief, the decisive question is not the location of the alleged point of discharge, but, rather, whether the discharge will flow into a navigable waterway . . . .
Id. at 106 (emphasis supplied).
A restrictive construction of the term "tributary" was also rejected in the cases of Martiny v. Wells, 419 P.2d 470, 473 (Idaho 1966); and Olgilvy Irrigation & Land Co. v. Insinger, 75 P. 598, 599 (Colo. App. 1904). In the Martiny and Insinger decisions, supra, the courts concluded that for purposes of water appropriation rights it does not matter whether water reaches a certain point by percolation through the soil, by a subterranean channel or by an obvious surface channel, so long as the water reaches the designated point by any of these natural means.
It is a well-established rule of case law in this state that the courts should accord great deference to administrative interpretations of statutes which the administrative agency is required to enforce. See, e.g, Department of Environmental Reg. v. Goldring, 477 So. 2d 532, 534 (Fla. 1985); Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So. 2d 716, 719 (Fla. 1983). The above-cited federal case law adopting the Black's Law Dictionary definition of the term "tributary" to include both a direct and indirect discharge into a jurisdictional water body reflects that the Department's interpretation here of the applicability of the requirements of the Grizzle-Figg Amendment to Tamaron's facility is not "unreasonable" as characterized by the Hearing Officer in his Recommended Order.
The Hearing Officer's "worst-case" scenario in conclusion of law 50 is neither compelling nor reasonably based on the law as applied to the matters of record in this case. The Hearing Officer's premise in this hypothetical is that the length of a jurisdictional tributary and the proximity of the waste discharge to the named coastal body should be determinative of whether the advanced waste treatment requirements of Grizzle-Figg apply, regardless of the frequency, volume or nature of the discharge into the tributary. However, there is no language in the Grizzle-Figg Amendment that in any way supports a
reasonable conclusion that discharges of waste into jurisdictional tributaries are not subject to the advanced waste treatment requirements merely because the point source of the discharge lacks immediate or close proximity to the named coastal water bodies. In addition, the documentary evidence of record in this proceeding reflects that one of the Tamaron subdivision stormwater lakes at issue here is less than three hundred and fifty yards from the jurisdictional tributary, Phillippi Creek. (Pet. Ex. 11) 2/
The preamble to the Grizzle-Figg Amendment (Chapter 87-303, Florida Statutes) evidences the clear intent of the Legislature that advanced waste treatment of wastewater discharged into West Coast Florida coastal waters or into the surface water or ground waters which feed them is critical to the protection of the public health and to the viability of the coastal water bodies and their tributaries in this area of the state. (emphasis supplied) The related provisions of Section 403.021, Florida Statutes, manifest the Legislative intent that the entire Chapter 403, titled "Environmental Control," was enacted due to public health and welfare concerns and the resulting need to protect the air and waters of Florida from further degradation.
It is a basic rule of statutory construction that statutes enacted in the public interest are remedial in nature and should be given a liberal construction in favor of the public. See 49 FLA. JUR. 2d, Statutes, Section 189, and cases cited therein. The appellate courts of Florida have consistently applied this liberal rule of construction in cases dealing with the interpretation of the pollution control provisions of Chapter 403, Florida Statutes. See, e.g., Department of Environmental Reg. v. Goldring, supra, at 534; State v. Hamilton, 388 So. 2d 561, 563 (Fla. 1980); Gregory v. Indian River
County, 610 So. 2d 547, 555 (Fla. 1st DCA 1992).
Upon concluding review of this exception, I am compelled to note my disagreement with the Hearing Officer's related conclusion of law in paragraph
41 that the Department had the initial burden of going forward at the DOAH hearing and establishing a prima facie showing of the applicability of the Grizzle-Figg requirements. 3/ However, since the permit applicant Tamaron actually presented its case-in-chief at the DOAH hearing prior to the Department presenting any evidence (Tr. 15-94), I view this legal conclusion to constitute harmless error in this case.
In view of the above, it is hereby concluded that Tamaron's facility is intermittently disposing of wastewater by discharge into a tributary stream (Phillippi Creek) of Roberts Bay, and that the facility is within the purview of the advanced waste treatment requirements of Section 403.086, Florida Statutes, as modified by the Grizzle-Figg Amendment. Consequently, the Department's exceptions to the Hearing Officer's conclusions of law in paragraphs 49, 50 and
51 of the Recommended Order are granted.
Exception B. THE NPDES PERMIT
The Department takes exception here to the Hearing Officer's findings of fact in paragraphs 32, 33, 34, 35 and 37 and the related conclusion of law in paragraph 55 of the Recommended Order. These portions of the Recommended Order deal with the testimony and documentary evidence presented by Tamaron at the DOAH final hearing relating to its purported compliance with the National Pollutant Discharge Elimination System (NPDES) permit granted to its facility in April of 1991 by the United States Environmental Protection Agency (EPA). (Resp. Ex. 9)
The Department notes in its exceptions the case law of Florida holding that Tamaron's requested state waste treatment permit must be granted or denied based solely on the permitting criteria set forth in the state pollution control statutes and the Department's implementing rules. See, e.g., Metro Dade County
Coscan Florida, 609 So. 2d 644 (Fla. 3d DCA 1992); Taylor v. Cedar Key Sewerage Dist., 590 So. 2d 481 (Fla. 1st DCA 1991). Thus, the Department correctly concludes that Tamaron's attempt to prove that its facility is in compliance with the advanced waste treatment standards of the Grizzle-Figg bill and the Department's related rules by showing compliance with the federal NPDES permit is insufficient as a matter of law. Coscan Florida, supra, at 650.
Tamaron's federal NPDES permit was changed from the draft permit to final permit stage to incorporate the requirements of the Grizzle-Figg Amendment relating to permitted annual average concentrations of total suspended solids and designated elements as currently set forth in Section 403.086(4)(a), Florida Statutes. (Resp. Ex. 9, page 3) However, there is no specific reference in the NPDES permit reflecting incorporation of the high level disinfection requirements of the Grizzle-Figg Amendment as currently set forth in Section 403.086(4)(b), Florida Statutes, and Rule 17-600.440(5), Florida Administrative Code. (Resp. Ex. 9)
The Department's exceptions contend that the subject factual findings and conclusion pertaining to the federal NPDES permit should be rejected as totally irrelevant. The Department's contention would appear to be well taken under Florida law, if it were not for the fact that this federal permit does purport to incorporate at least a portion of the advanced waste treatment requirements of the Grizzle-Figg Amendment. Questions regarding the relevancy and materiality of evidence are matters ordinarily within the province of the Hearing Officer, as the trier of the facts. Heifetz, supra, at 1281.
Due to the reference in the federal NPDES permit to a portion of the Grizzle-Figg requirements, those findings dealing with Tamaron's purported compliance with the NPDES permit do not appear to constitute a clear abuse of discretion or a departure from the essential requirements of law by the Hearing Officer. However, as noted above, compliance with this federal permit is legally insufficient to constitute reasonable assurances that Tamaron's facility meets all of the state advanced waste treatment standards of Section 403.086, Florida Statutes, as modified by the Grizzle-Figg Amendment.
In view of the above, the Department's exceptions to the Hearing Officer's findings of fact 32, 33, 34, 35 and 37 are denied. The Department's exception pertaining to the Hearing Officer's related conclusion of law 55 is granted in part as hereafter ordered in paragraph D. on page 24 of this Final Order.
Exception C. GRIZZLE-FIGG COMPLIANCE
The Department takes exception here to the Hearing Officer's finding of fact 39 and conclusions of law 52, 55 4/ and 58, dealing with Tamaron's attempt to show compliance with the advanced waste treatment requirements of the Grizzle-Figg Amendment and the Department's rules implementing Grizzle-Figg. In conclusion of law 52, the Hearing Officer attempts to summarize the legal position of the Department that Tamaron has failed to provide reasonable assurances of compliance with the Grizzle-Figg advanced waste treatment requirements, assuming arguendo that Grizzle-Figg is applicable to Tamaron's facility. This conclusion in paragraph 52 of the Recommended Order appears to be a reasonably accurate statement and is adopted.
The Department's basic contention in this exception is that Tamaron failed to provide reasonable assurances at the hearing that its facility and its method of operation comply with the advanced waste requirements of Grizzle-Figg and the Department's implementing rules. This contention appears to be well founded in light of the application of the Grizzle-Figg requirements to the evidence of record in this proceeding.
The Department's exception also correctly observes that the Hearing Officer's alternative conclusion that Tamaron has provided reasonable assurances that its facility complies with the advanced waste treatment standards of Grizzle-Figg was based in large part on his findings and conclusion relating to Tamaron's compliance with the NPDES permit.
The Hearing Officer recognized in paragraph 41 of the Recommended Order that under Florida law Tamaron has the ultimate burden of proving its entitlement to the requested permit. Young, supra, at 835; Cordes, supra, at 654; J.W.C. Co., supra, at 788. The Hearing Officer ultimately ruled in paragraph 58 that Tamaron had provided reasonable assurances that its "facility can meet the requirements of advanced waste treatment" set forth in Section 403.086(4) & (5), Florida Statutes, notwithstanding that:
Tamaron's only expert witness at the DOAH hearing was its consulting engineer, William Murchie. Mr. Murchie admitted that the technical design of Tamaron's facility did not currently comply with the high level disinfection facility design requirements of Rule 17-600.440(5), Florida Administrative Code, calling for total suspended solids to be reduced to 5.0 mg/l prior to the application of the disinfectant. (Tr. 317) These high level disinfectant rule provisions were adopted pursuant to the mandate of that portion of the Grizzle- Figg Amendment currently set forth in Section 403.086(4)(b), Florida Statutes.
The Hearing Officer also concluded in paragraph 57 of the Recommended Order that Tamaron's facility does not presently meet the technical design requirements for high level disinfection under the Grizzle-Figg Amendment as implemented in Rule 17-600.440(5), Florida Administrative Code.
The Hearing Officer's findings and conclusions reflect his concern that the evidence presented at the hearing was not clear regarding whether the NPDES permit monitoring and sampling requirements meet the advanced waste treatment monitoring and sampling requirements of Grizzle-Figg as implemented by Rule 17- 600.740(1)(b)2., Florida Administrative Code. (Rec. Order, para. 37 and 55)
The essence of the testimony of Tamaron's consulting engineer, William Murchie, was that the facility will be able to provide the equivalent of the Grizzle-Figg advanced waste treatment requirements as to permitted concentrations of designated elements set forth in subsection 403.086(4)(a), Florida Statutes, even though Tamaron's facility is admittedly not presently designed to comply with the high level disinfection sequential application requirements of subsection 403.086(4)(b), Florida Statutes, and Rule 17- 600.440(5), Florida Administrative Code. (Tr. 315-318). This equivalency position was essentially adopted by the Hearing Officer as the basis for his conclusions in paragraphs 55 and 57 of the Recommended Order leading to his ruling in paragraph 58 that Tamaron has provided reasonable assurances that its facility can meet the Grizzle-Figg advanced waste treatment requirements.
The "equivalency" argument made by Tamaron's expert and adopted by the Hearing Officer would require the Department to effectively waive the high level disinfectant requirements of Section 403.086(5), Florida Statutes, as
implemented by Department Rule 17-600.440(5) in order to grant the requested permit. It is axiomatic that the Department has no authority to waive statutory requirements. In addition, it is established case law that state agencies must honor the requirements of their own substantive rules until they are amended or repealed. See, , DeCarion v. Martinez, 537 So. 2d 1083 (Fla. 1st DCA 1989); Grady v. Division of Retirement, 387 So. 2d 419 (Fla. 1st DCA 1980); Gadsen State Bank v. Lewis, 348 So. 2d 343, 345 (Fla. 1st DCA 1977).
The Hearing Officer's determination that Tamaron has provided reasonable assurances that its facility can meet the advanced waste requirements of the Grizzle-Figg Amendment is, in essence, a mixed question of law and fact. See Harloff v. City of Sarasota, 575 So. 2d 1324 (Fla. 2d DCA 1991). As discussed in the preface above, under the standards of agency review there are substantial restrictions on modifying a hearing officer's pure factual findings. However, the reviewing agency does have the authority to substitute its judgment concerning whether a certain set of facts found by a hearing officer legally establishes "reasonableness" or "unreasonableness" under the governing law. Id. at 1328.
As noted above, the uncontradicted expert testimony at the hearing as found by the Hearing Officer is that Tamaron's facility is not currently designed to meet the high level disinfectant requirements of Section 403.086(4)(b), Florida Statutes, and Rule 17-600.440(5), Florida Administrative Code, which mandate that total suspended solids must be reduced to 5.0 mg/l prior to application of chlorine or other disinfectant. Parenthetically, it is also noteworthy that one of the Department's experts testified that Tamaron's facility having its final clarifier and chlorine contact chamber located prior to the tertiary filter used to reduce total suspended solids (TSS), is a "poor design" and results in the TSS values being "no good." (Tr. 188-189, Pet. Ex. 18)
Based on the foregoing, the Hearing Officer's legal conclusion in paragraph
58 that Tamaron has given reasonable assurances that its facility can meet the advanced waste treatment requirements of Section 403.086(4), Florida Statutes, [and the Department's implementing rules] is rejected.
The Department further takes exception to the Hearing Officer's finding of fact 39 and the related legal conclusion in paragraph 58, wherein the Hearing Officer finds and concludes that Tamaron has provided reasonable assurances that its facility can meet the minimum negative impact requirements of Section 403.086(5), Florida Statutes. It must be noted here that these minimum negative impact provisions are supplemental statutory requirements that come into play only "when a recovered water product has been established to be in compliance with the standards set forth in subsection (4)." See Section 403.086(5)(a), Florida statutes. In view of the previous ruling in this Final Order that Tamaron has not established that its wastewater is in compliance with the advanced waste treatment requirements of subsection 403.086(4), Florida statutes, the subject factual finding and legal conclusion of the Hearing Officer regarding minimum negative impact are rendered moot. Consequently, the Department's exceptions to finding of fact 39 and that portion of conclusion of law 58 dealing with the minimum negative impact provisions of Section 403.086(5), Florida Statutes, are granted.
D. HEARING OFFICER'S RECOMMENDATION
The Department takes issue here with the Hearing Officer's alternative recommendation set forth on pages 22-23 of the Recommended Order that the Department enter a Final Order granting Tamaron a secondary treatment facility
operating permit or granting an advanced waste treatment permit with conditions to be developed by the Department. This exception is granted, based primarily on the prior rulings in this Final Order granting the Department's exception A in its entirety (regarding the applicability of Grizzle-Figg), and granting portions of exceptions B and C (challenging the Hearing Officer's legal conclusions that Tamaron has provided reasonable assurances that its facility meets the advanced waste treatment requirements of the Grizzle-Figg Amendment and the Department's rules implementing Grizzle-Figg).
Another basis for granting this exception is the speculative nature of the Hearing Officer's alternative recommendation that a Final Order be entered granting Tamaron an advanced waste treatment permit with conditions to be drafted by the Department to ensure that Tamaron's facility will comply with the monitoring and high level disinfectant requirements of the Department's rules implementing Grizzle-Figg. This alternative recommendation attempts to place a burden on the Department that is neither mandated nor permitted by Florida law.
In Metro. Dade County v. Coscan Florida, 609 So. 2d 644 (Fla. 3d DCA 1992), the court ruled that the hearing officer erred by relying on the provisions of a settlement agreement between the Department and the permit applicant dealing with phased construction and future monitoring to constitute the necessary reasonable assurances that the project met water quality standards. The court observed in its opinion that:
We do not think that the statute allows the agency to proceed without an analysis, in advance, of (1) the likely effects of the project and (2) the question whether the applicant has provided reasonable assurances that water quality standards will be met.
* * *
We conclude that the hearing officer must examine the applicant's proposal to determine at this time whether the project provides the necessary reasonable assurances called for by the statute . . . . The statute is prohibitory: it requires reasonable assurances before the project is started that water quality standards will not be violated.
Id. at 648 (emphasis supplied).
This holding in the Coscan Florida case also applies to proscribe those portions of the Hearing Officer's conclusions of law 55 and 57 suggesting that specific conditions be developed by the Department in an attempt to accomplish- compliance by Tamaron'S facility with the high level disinfectant requirements mandated by Grizzle-Figg and implemented in the Department's rules.
CONCLUSION
The paramount public interest considerations underlying the advanced waste treatment requirements of Grizzle-Figg warrant a liberal construction of its jurisdictional requirements by the Department, as the agency having the duty to enforce these statutory requirements. The Department's interpretation that the requirements of Grizzle-Figg are applicable to Tamaron's facility is entitled to great weight and should not be overturned unless clearly erroneous. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So. 2d
716 (Fla. 1983); Gregory v. Indian River County, 610 So. 2d 547, 555 (Fla. 1st DCA 1992). The fact that the Department's interpretation of the jurisdictional requirements of Grizzle-Figg is consistent with federal and other state case law interpreting the term "tributary" reflects that this interpretation is not clearly erroneous. The attempt of the Hearing Officer to impose upon the Department the duty to draft conditions in the Final Order that might or might not ultimately result in Tamaron's compliance with the Grizzle-Figg advanced waste treatment requirements is too speculative to comply with Florida case law holding that a permit applicant-has to provide reasonable assurances at the time of the hearing that the project complies with the applicable statutory and rule requirements for design, operation and discharge.
Therefore, it is ORDERED THAT:
The findings in paragraph 39 of the Recommended Order are rejected in their entirety.
Conclusion of law 41 of the Recommended Order is modified to read as follows:
In a permit denial case, such as the instant case, the applicant has both the initial burden of going forward with a prima facie case and the ultimate burden of proving entitlement to the permit by a preponderance of the evidence.
Conclusions of law 49, 50 and 51 of the Recommended Order are rejected in their entirety.
Conclusion of law 55 of the Recommended Order is modified by deleting therefrom the last two sentences and substituting in lieu thereof the following:
In any event, compliance by Tamaron with the requirements of the NPDES permit does not constitute reasonable assurances under Florida law that Tamaron's facility meets all the advanced waste treatment requirements of the Grizzle-Figg Amendment and the Department's rules implementing Grizzle-Figg.
Conclusion of law 57 of the Recommended Order is modified by deleting therefrom the last two sentences.
Conclusion of law 58 of the Recommended Order is rejected in its entirety.
The Recommendations of the Hearing Officer on pages 22- 23 of the Recommended Order are rejected in their entirety.
All of the Hearing Officer's findings of fact and conclusions of law not expressly modified or rejected herein are adopted and incorporated by reference.
The application of Tamaron Utilities, Inc., for renewal of its operating permit for its secondary wastewater treatment facility is DENIED. Such denial is without prejudice to the filing by Tamaron of a subsequent
application for an operating and/or construction permit with facility modifications designed to comply with all the advanced waste treatment requirements of Section 403.086, Florida Statutes, as modified by the Grizzle- Figg Amendment, and the Department's rules implementing Grizzle- Figg.
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 mules of Appellate Procedure, with the clerk of the Department 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 this 17th day of June, 1994, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
ENDNOTES
1/ There is no language in the Grizzle-Figg Amendment or in any related statutory or rule provisions dealing with advanced waste treatment requirements that would exempt facilities from the Department's regulatory jurisdiction on the basis of the volume of discharge into a named body or a stream tributary thereto.
2/ This aerial photograph of the Tamaron facility, subdivision and surrounding area has an index scale of one inch to two hundred feet. The shortest distance from Phillippi Creek to the eastern edge of the northern-most stormwater lake is approximately one thousand feet.
3/ The case law of Florida holds that in a formal administrative hearing under section 120.57, Florida Statutes, a permit applicant challenging a proposed permit denial has both the initial burden of going forward and presenting a prima facie case and the ultimate burden of proving entitlement to the permit by a preponderance of evidence. See, e.g., Young v. Department of Community Affairs, 625 So. 2d 831, 835 (Fla. 1993), and Florida Dept. of Transportation v.
J.W.C. Co. Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). The attorney representing the Department at the DOAH hearing did state in her opening argument that she agreed with Tamaron's counsel that the Department had the initial burden of going forward and presenting a prima facie showing of Grizzle- Figg's applicability to Tamaron's facility. However, an agency head reviewing a recommended order is in the role of an impartial arbiter and is free to exercise his or her judgment concerning the validity of the hearing officer's conclusions of law regardless of the legal positions advocated by the parties in the proceeding before DOAH. See, e.g., Ridgewood Properties v. Dept. of Community
Affairs, 562 So. 2d 322, 323 (Fla. 1990); Cordes v. Dept. of Environmental Reg., 582 So. 2d 652, 655 (Fla. 1st DCA 1991).
4/ The Department's exception to conclusion of law 55 dealing with the NPDES permit has been addressed in the preceding ruling and was granted in part.
Conclusion of law 55 is modified in the decretal portion of this Final Order by deleting the last two sentences and adding an additional sentence concluding that compliance with the NPDES permit does not constitute reasonable assurances that Tamaron's facility complies with all of the advanced waste treatment requirements of Grizzle-Figg and the Department's implementing rules.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent by U.S. Mail to:
Charles G. Stephens, Esquire
C. Robinson Hall, Esquire Enterprise Plaza, Suite 1516
101 E Kennedy Blvd Tampa, FL 33602
and by hand delivery to:
William R. Cave Ann Cole, Clerk
Hearing Officer Division of Administrative Division of Administrative Hearings
Hearings The DeSoto Bldg
The DeSoto Bldg 1230 Apalachee Pkwy
1230 Apalachee Pkwy Tallahassee FL 32399-1550
Tallahassee FL 32399-1550
Francine Ffolkes, Esquire Twin Towers Office Bldg 2600 Blair Stone Rd Tallahassee FL 32399-2400
this 17th day of June, 1994.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
DAVID A. CROWLEY
Deputy General Counsel Twin Towers Office Bldg 2600 Blair Stone Rd Tallahassee FL 32399-2400 Telephone: 904/488-9314
| Issue Date | Proceedings |
|---|---|
| Jun. 20, 1994 | Final Order filed. |
| May 19, 1994 | Department of Environmental Protection`s Exceptions To Recommended Order filed. |
| May 03, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held August 9 & 10, 1993. |
| Sep. 27, 1993 | Department of Environmental Protection`s Proposed Recommended Order filed. |
| Sep. 22, 1993 | Proposed Recommended Order filed. |
| Sep. 13, 1993 | Order Granting Extension of Time sent out. |
| Sep. 10, 1993 | (Petitioner) Request for Extension of Time filed. |
| Aug. 31, 1993 | Transcript (2 Volumes) filed. |
| Aug. 09, 1993 | CASE STATUS: Hearing Held. |
| Aug. 06, 1993 | Respondent Department`s Prehearing Statement filed. |
| Jul. 23, 1993 | (DEP) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 15, 1993 | (Respondent) Notice of and Certificate of Service of Department`s Answers to Petitioner`s First Set of Interrogatories; Department`s Answers to Petitioner`s First Set of Interrogatories filed. |
| Jul. 06, 1993 | Notice and Certificate of Service of Department`s Answers to Petitioner`s First Set of Interrogatories filed. |
| Jun. 23, 1993 | Petitioner`s Motion to Compel filed. |
| May 07, 1993 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 11:00am on August 9, 1993 and at 9:00am on August 10, 1993; Sarasota) |
| May 05, 1993 | Letter to WRC from Francine M. Ffolkes (re: suitable dates for hearing) filed. |
| May 04, 1993 | Letter to WRC from C. Stephens (re: avail hearing dates) filed. |
| Apr. 12, 1993 | Notice and Certificate of Service of Petitioner Tamaron Utilities, Inc.`s First Set of Interrogatories filed. |
| Mar. 03, 1993 | Notice of Hearing sent out. (hearing set for June 22, 1993 at 11:00am and 9:00am; June 23, 1993; Sarasota) |
| Mar. 02, 1993 | Status Report filed. (From Charles G. Stephens) |
| Feb. 10, 1993 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report by 3-1-93) |
| Feb. 05, 1993 | Request for Extension of Time filed. (From Charles G. Stephens) |
| Jan. 05, 1993 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report by 1-29-93) |
| Dec. 29, 1992 | Request for Extension of Time filed. |
| Dec. 18, 1992 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report by 12-28-92.) |
| Dec. 16, 1992 | (Respondent) Status Report filed. |
| Nov. 30, 1992 | Letter to WRC from Francine M. Ffolkes (re: Filing Status Report) filed. |
| Sep. 18, 1992 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report by 12-14-92) |
| Sep. 18, 1992 | (Petitioner) Status Report filed. |
| Aug. 06, 1992 | Order sent out. (Case continued until further Notice; Parties status report due 9/18/92) |
| Aug. 03, 1992 | (Petitioner) Status Report filed. |
| Jul. 09, 1992 | Notice of Appearance of Counsel for Department of Environmental Regulation filed. |
| May 21, 1992 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report by 7-31-92) |
| May 11, 1992 | (Petitioner) Status Report filed. |
| Mar. 09, 1992 | Order Granting Continuance and Status Report sent out. (hearing date to be rescheduled at a later date; parties to file status report by 5-11-92) |
| Mar. 09, 1992 | Joint Motion for Continuance filed. |
| Mar. 09, 1992 | Joint Motion for Continuance filed. |
| Mar. 04, 1992 | Notice of Taking Deposition filed. (From Charles G. Stephens) |
| Feb. 28, 1992 | Amended Notice of Hearing (as to Hearing Room only) sent out. (hearing set for March 13, 1992; 9:00am; Sarasota) |
| Dec. 16, 1991 | Second Notice of Hearing sent out. (hearing set for 03/13/92;9:00AM;Sarasota) |
| Dec. 16, 1991 | Order Reopening File sent out. |
| Dec. 13, 1991 | Joint Motion to Reopen File and for Continuance filed. |
| Dec. 03, 1991 | Order Closing File sent out. CASE CLOSED, Parties failure to timely respond. |
| Sep. 19, 1991 | Order of Continuance and Status Report (Hearing is Cancelled; Status Report due November 26, 1991) sent out. |
| Jul. 02, 1991 | Notice of Hearing sent out. (hearing set for Sept. 26, 1991; 9:00am;Sarasota). |
| Jun. 28, 1991 | Ltr. to AHP from W. Douglas Beason re: Reply to Initial Order filed. |
| Jun. 11, 1991 | (Petitioner) Notice of Change of Address by Counsel of Record filed. (From Charles G. Stephens) |
| May 17, 1991 | Initial Order issued. |
| May 13, 1991 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Notice of Permit Denial; Petition for Formal Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 17, 1994 | Agency Final Order | |
| May 03, 1994 | Recommended Order | Department of Environmental Regulations without jurisdiction-water not tributary thereto alternatively, petitioner meets criteria of advanced waste treatment under 403.086(4). |
