STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PASCO COUNTY BOARD OF )
COUNTY COMMISSIONERS, )
)
Petitioner, )
)
vs. ) CASE NO. 92-1604
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
) PASCO COUNTY UTILITY DEPARTMENT, )
)
Petitioner, )
)
vs. ) CASE NO. 92-1653
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
) PASCO COUNTY BOARD OF )
COUNTY COMMISSIONERS, )
)
Petitioner, )
)
vs. ) CASE NO. 92-1654
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
A formal administrative hearing was held in this case on February 8 through 10, 1994, in Tampa, Florida, and on March 7, 1994, in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Edward P. de la Parte, Jr., Esquire
David M. Caldevilla, Esquire
de la Parte, Gilbert & Bales, P.A. One Tampa City Center, Suite 2300 Tampa, Florida 33601-2350
For Respondent: Douglas H. MacLaughlin, Esquire
Francine M. Ffolkes, Esquire Keith C. Hetrick, Esquire Assistant General Counsel
Department of Environmental Regulation 2600 Blairstone Road
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES
The issues in this case are:
Case No. 92-1604: Whether the Department should grant the County's amended application for a permit (application no. DC51-189086) to construct a sprayfield reuse disposal system at .215 MGD and a rapid rate infiltration basin reuse (percolation pond) disposal system at .185 MGD at Moon Lake Road.
Case No. 92-1653: Whether the Department should grant the County's amended application for a permit (application no. DO51-194674) to operate its Wesley Chapel Wastewater Treatment Plant at .600 MGD and to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.600 MGD.
Case No. 92-1654: Whether the Department should grant the County's application for a permit (application no. DO51-199516) to reactivate the operation of its Ryals Road rapid rate infiltration basin reuse (percolation pond) disposal system at .1075 MGD.
PRELIMINARY STATEMENT
On March 10, 1992, the Department referred to the Division of Administrative Hearings (DOAH) Pasco County's request for formal administrative proceedings on the Department's denial of the County's application seeking authorization to operate the County's Wesley Chapel Wastewater Treatment Plant (WWTP) at .750 MGD and Oakley Grove Percolation Pond System at .600 MGD, Permit Application No. DO51-194674. It was assigned DOAH Case No. 92-1653.
On March 13, 1992, the Department referred to DOAH the County's request for formal administrative proceedings on the Department's denial of the County's application seeking authorization to reactivate operations at the Ryals Road Percolation Pond System at a disposal capacity of .1075 MGD, Permit Application No. DO51-199516. It was assigned DOAH Case No. 92-1654.
On March 19, 1992, the Department referred to DOAH the County's request for formal administrative proceedings on the Department's denial of the County's application seeking authorization construct Moon Lake Road WWTP, Sprayfield, and Percolation Pond System. The design treatment capacity sought for Moon Lake Road WWTP was .800 MGD, for the sprayfield was .215 MGD, and for the percolation pond system was .185 MGD. The application bore Permit Application No. DC51- 189086. It was assigned DOAH Case No. 92-1604.
On or about April 7, 1992, those three cases were consolidated, along with two others (DOAH Case Nos. 92-1603 and 92-1655), and the consolidated cases were scheduled for final hearing on July 13-17, 1992. On May 12, 1992, final hearing in the newly consolidated cases was rescheduled for four days in September, 1992. On July 28, 1992, the length of the hearing was increased to September
14-25, 1992.
On August 28, 1992, the County filed an unopposed motion for continuance, and on September 4, 1992, final hearing was continued until further notice, and a status conference was scheduled. On October 12, 1992, the parties reported that settlement appeared imminent, and the consolidated cases were placed in abeyance until further notice. The parties were required to report the status by November 20, 1992.
Settlement negotiations continued while the cases remained in abeyance status in accordance with the parties' status reports. On June 28, 1993, the County requested that the cases be rescheduled for final hearing and that prefiled testimony be required. On August 16, 1993, final hearing was rescheduled for November 2-5, 1993, and the parties were required to prefile direct testimony and to file a prehearing stipulation.
On October 4, 1993, cases 92-1603 and 92-1655 were severed from the above- captioned cases and were voluntarily dismissed. Final hearing in the above- captioned cases was continued until February 8, 1994.
On October 25, 1993, the County moved for sanctions on the grounds that the Department failed to timely respond to discovery requests and, on the same grounds, moved the hearing officer on October 27, 1993, to enter a summary recommended order and to relinquish jurisdiction. The County requested oral argument, which was scheduled for November 22, 1993. On the day of the hearing, the Department filed a Motion for Relief from Admissions, as well as a Response to Motion for Sanctions and a Response to Pasco County's Motion for Summary Recommended Order and to Relinquish Jurisdiction.
On November 23, 1993, the hearing officer granted the Department's Motion for Relief from Admissions, denied the County's Motion for Summary Recommended Order, and granted the County's Motion for Sanctions to the extent of the County's reasonable attorney fees and costs of moving for sanctions.
Jurisdiction was reserved to determine the amount of attorney fees and costs if the parties could not agree to their amount.
On November 30, 1993, the Department filed an uncontested Motion to Amend Prehearing Order and Extend Deadlines, which the hearing officer granted on December 1, 1993.
On December 2, 1993, the County filed a Second Motion for Sanctions for failure to timely respond to discovery requests as ordered. The Department filed a written response in opposition, and the hearing officer denied the County's motion on December 15, 1993.
On January 3, 1994, the County gave notice of the filing of a rule challenge petition (DOAH Case No. 94-0001RX) that was related to the above- captioned cases and asked that the cases be consolidated for final hearing. On January 26, 1994, the cases were consolidated for final hearing on February 8- 11, 1994.
On January 20, 1994, the County filed a motion in limine seeking to exclude from the final hearing the issues of certain alleged violations of Department rules, and the Department filed a Notice of Modification of Agency Position to add citations of authority for an earlier Department request for additional information on the Moon Lake Road application. On January 24, 1994, the County moved to strike the Department notice of modification and moved for official
recognition of Department rules and regulations (attached as Exhibits A through G), as well as Department answers to County interrogatories.
As a result of consecutive orders granting uncontested motions to extend the deadline, the parties' prehearing stipulation and their prefiled testimony was due to be filed on January 26, 1994. Instead of a prehearing stipulation, the parties filed separate prehearing statements. They also prefiled the direct testimony of their witnesses. (The Department's prefiled direct testimony was prepared the day after the latest deadline and was filed two days late, and the County filed a Third Motion for Sanctions, which it later withdrew.)
On January 31, 1994, the Department filed a motion in limine and motion to strike prefiled testimony seeking to limit the issues on the Moon Lake Road case to whether the County's application was complete. On February 1, 1994, the Department filed a response in opposition to the County's motion to strike the Department's notice of modification on the Moon Lake Road application.
Argument on the pending motions was heard on February 2, 1994, and an Order Denying Motions was entered with respect to both parties' motions in limine, as well as the County's motion to strike the Department's Notice of Modification of Agency Action.
On the first day of the final hearing, on February 8, 1994, the Department filed and argued a motion for protective order to prohibit the County from taking additional depositions of witnesses already once deposed; the County filed and argued a Motion to Reopen Discovery for Limited Depositions on Newly Disclosed Opinions. The Department's motion was granted; the County's motion was denied. Also, the County's Motion for Official Recognition filed on January 24, 1994, was granted.
It was agreed at the outset of the final hearing that the above-captioned cases would be tried on February 8 through 10, 1994, and that Case No. 94-0001RX (the rule challenge) would be heard on February 11, 1994. At the final hearing, the County moved into evidence the prefiled direct testimony of: Layne Cady, P.E. (268 pages); Douglas Bramlett (65 pages); Richard Mortensen, P.E. (75 pages); Michael Micheau, P.G. (85 pages); Harvey Harper, III, P.E., Ph.D. (110 pages); and William Dunn, Ph.D. (31 pages). Additional direct testimony of the County witnesses was presented at the final hearing, and they were cross- examined by the Department.
In its case, the Department moved into evidence the prefiled direct testimony of: Joseph Amato, P.E. (39 pages); David Rhodes (80 pages); Judith Richtar, P.G. (45 pages); and Edward Snipes, P.E. (9 pages). Additional direct testimony of the Department witnesses was presented at the final hearing, and they were cross-examined by the County. In addition, the Department also called Pat Fricano and Peter Burghardt to testify in its case-in-chief.
During the cases in chief, the following exhibits were admitted in evidence: County Exhibits 1 through 40, and 42 through 171; and Department
Exhibits 1-18, 20-22, 24-31, 33, 35, 38, 43-45, 50-58, 60-63. Ruling was
reserved on the County's objection to Department Exhibit 32, as well as related testimony, on the ground that the exhibit and testimony were evidence of an offer to compromise or conduct or statements made in negotiations concerning a compromise.
The County's rebuttal case was scheduled to be presented on February 11, 1994, after the conclusion of the final hearing in Case No. 94-0001RX (the rule
challenge). However, due to illness of counsel for the County, the final hearing was continued without objection to March 7, 1994, in Tallahassee for purposes of rebuttal.
In rebuttal, the County: recalled witnesses Cady, Bramlett, Micheau and Dunn; and, in addition, called Paul Pilny and Mark Hammond. The County also had additional County Exhibits 172 through 176 admitted in evidence.
The parties ordered the preparation of a transcript of the final hearing and initially asked for and received 45 days from the filing of the transcript in which to file proposed recommended orders. Four volumes of transcript (766 pages) were filed on April 5, making the proposed recommended orders due by May 20, 1994. However, a joint motion to extend the time to June 20, 1994, and to enlarge the F.A.C. Rule 60Q-2.031(2) 40-page limit on proposed recommended orders to 90 pages was granted. Successive second and third joint motions to extend the filing deadline, to July 11 and then to July 31, 1994, also were granted.
On July 28, 1994, the parties filed a Second Joint Motion to Exceed Page Limitations. It was believed that it sought a further enlargement of the F.A.C. Rule 60Q-2.031(2) 40-page limit on proposed recommended orders, but this time to
120 pages. However, at one point, the motion referred to a 120-page limit on "Proposed Findings of Fact." The subtle change in the request was overlooked, and the motion was granted without comment.
Instead of timely filing a 120-page proposed recommended order, on August 2, 1994, the County filed a 117-page document entitled Pasco County's Proposed Findings of Fact, consisting 623 numbered paragraphs of proposed findings of fact. The rest of the County's proposed recommended order was included in a second document, 60 pages in length, entitled "Pasco County's Memorandum of Law in Support of Proposed Findings of Fact." The County specifically insisted upon explicit rulings all 623 proposed findings of fact, including all subparagraphs and footnotes.
The Department filed its proposed recommended order on August 1, 1994. The Department also divided its proposed recommended order into two documents. Its
213 proposed findings of fact and most of its proposed recommended order are contained in a 77-page document entitled "Department of Environmental Protection's Proposed Recommended Order." The rest of the proposed recommended order is contained in a separate 18-page document entitled "Department of Environmental Protection's Memorandum of Law and Closing Argument."
Each and every proposed finding of fact has been carefully considered.
The County's proposed recommended order was filed late and arguably also exceeded the enlarged page limitation. Together, the Department submissions did not exceed the enlarged page limitation for proposed recommended orders, but it was also filed after the deadline. It is possible that neither party is entitled to insist on explicit rulings on its proposed findings of fact. Cf.
Sunrise Community, Inc., v. Dept. of Health, etc., 14 F.A.L.R. 5162 (DHRS 1992), aff'd, 619 So. 2d 30 (Fla. 3d DCA 1993). Nonetheless, although it is questionable whether their usefulness justifies the time and effort expended on them, explicit rulings on each proposed finding of fact have been made in accordance with Harbor Island Beach Club, Ltd., v. Dept. of Natural Resources,
476 So. 2d 1350 (Fla. 1st DCA 1985), and may be found in the Appendix to Recommended Order, Case Nos. 92-1604, 92-1653, and 92-1654.
On August 31, 1994, the County filed a Notice of Supplemental Authority.
FINDINGS OF FACT
The Applications.
Permit DC51-189086 (Moon Lake Road Site).
The County's application for Permit DC51-189086 was filed on 11/13/90. It sought to construct Moon Lake Road WWTP, Sprayfield, and Percolation Pond System. The design treatment capacity sought for Moon Lake Road WWTP was .800 MGD, for the sprayfield was .215 MGD, and for the percolation pond system was
.185 MGD.
The application for Permit DC51-189086 was denied on 2/13/92. Notice of the proposed agency action was published in accordance with Department requirements, and the County timely petitioned for a formal administrative hearing.
On 11/16/93, the County amended its application for Permit DC51-189086 to exclude the proposed Moon Lake Road WWTP, in order to defer construction of the WWTP to a later date.
On 1/5/94, the County amended its application for Permit DC51-189086 to withdraw the request for a surface water permit and a stormwater permit. Due to the recent interagency agreement between the Department and SWFWMD, the County decided to defer surface water and stormwater permitting for this facility until after the construction permit was issued.
Permit DO51-194674 (Wesley Chapel WWTP/Oakley Grove Site).
The County's application for Permit DO51-194674 was timely filed on 2/12/91. The application sought authorization to operate the County's Wesley Chapel Wastewater Treatment Plant (WWTP) at .750 MGD and Oakley Grove Percolation Pond System at .600 MGD.
The application for Permit DO51-194674 was denied by the Department on 7/18/91. The notice of permit denial alleges that the County failed to submit requested additional information, that an inspection of the site had revealed a 6-inch irrigation pipe undermining a percolation pond berm, and that the Certificate of Completion of Construction did not accurately reflect observed aspects of the disposal area. The County timely petitioned for administrative hearing.
The application for Permit DO51-194674 was amended on 11/16/93 to limit the treatment capacity of Wesley Chapel WWTP to .600 MGD.
Permit DO51-199516 (Ryals Road Site).
The portion of this case concerning Permit DO51-199516 involves the County's request to reactivate operations at the Ryals Road Percolation Pond System. The requested disposal capacity is .1075 MGD, which is about half of its disposal capacity when it previously was in operation.
Ryals Road Percolation Pond System is a reuse facility owned by the County, and constructed in 1985 as a replacement for nearby Oaks Royal Percolation Pond, where a sinkhole had developed.
The County's initial construction permit application (#DC51-100407) for the Ryals Road Percolation Pond System was filed with the Department in 1985. The Department granted the application for Permit DC51-100407 on 7/10/85. Ryals Road Percolation Pond System's permitted disposal rate was about .200 MGD.
Construction of Ryals Road Percolation Pond System was completed in 1986, and operation began immediately thereafter due to the appearance of a new sinkhole at the Oaks Royal Percolation Pond. The Department was advised of the new sinkhole in the Oaks Royal Percolation Pond in 1/86 and in 2/86 and was advised that reclaimed water from Oaks Royal WWTP was being diverted to Ryals Road Percolation Pond System.
The Ryals Road Percolation Pond System operated from 1986 through 1989. It received reclaimed water from Oaks Royal WWTP.
A sinkhole developed in Ryals Road Percolation Pond System in 1987. The County backfilled the sinkhole and advised the Department of the problem.
The County's initial operation permit application (#DO51-142683) for Ryals Road Percolation Pond System was filed with the Department in 1989. The Department granted the County's application for Permit DO51-142683 in 8/89. It does not contain any permit conditions dealing with the potential for sinkhole formation at the Ryals Road Percolation Pond System. At the time, the Department anticipated that the Ryals Road Percolation Pond System would be in operation for only a year or two.
The County operated Ryals Road Percolation Pond System under Permit DO51-142683 until sometime in 1990, without further sinkhole or land subsidence problems.
Ryals Road Percolation Pond System was taken out of service in 1990, when Oaks Royal WWTP was abandoned. Oaks Royal WWTP was taken out of service because, after completion of Southeast WWTP, it no longer was needed.
On a routine monitor well sampling report to the Department dated April 30, 1990, the County's laboratory supervisor noted that the Oaks Royal WWTP had been taken out of service prior to January, 1990.
On a subsequent report dated May 29, 1990, the County's laboratory supervisor noted that monitor wells at the Ryals Road site had been destroyed and that no ground water samples could be taken or reported. This report also noted that no arrangements were being made to replace the monitor wells since the Oaks Royal WWTP was "no longer on-line."
The County never formally withdrew or surrendered its operation permit DO51-142683 for the operation of the Oaks Royal WWTP and Ryals Road Percolation Pond System. The Department never took action to revoke or terminate the Oaks Royal/Ryals Road operation permit and never gave the County notice of intent to do so.
The County first notified the Department of its intent to "revive" the Ryals Road Percolation Pond System through letters dated 4/12/91 and 4/18/91. The County attempted to reactivate the facility by letter rather than permit application because it believed the facility was already authorized to operate pursuant to Permit DO51-142683.
After receiving no response to its 4/91 letters, the County sent the Department a follow-up letter dated 6/10/91 again asking to "revive" Ryals Road Percolation Pond System. This letter refers to the County's request to reactivate the system as a "minor modification" to Permit DC51-150232C, which authorized construction activities at the County's Southeast WWTP. The letter sought a minor modification of the construction permit instead of an amendment to Permit DO51-142683 because the County was unsure of the status of the Ryals Road Percolation Pond System operation permit and had been advised by Department employees that this would be the most expeditious way to handle its request.
The County's request for a minor modification was assigned permit identification number DO51-199516, and the "O" signifies an operation permit application. The County does not know why its request to reactivate Ryals Road Percolation Pond System was treated by the Department as a new operation permit application.
The County first learned that its request to reactivate Ryals Road Percolation Pond System had been assigned a new operation permit identification number when it received notice of permit denial. The "application" for Permit DO51-199516 was denied on 8/26/91. The County timely petitioned for a formal administrative hearing.
The Notice of Permit Denial for Permit DO51-199516 alleged that Ryals Road Percolation Pond System is not suitable for rapid rate disposal due to the high potential for subsidence activity, that this potential is demonstrated by the appearance of sinkholes in 1985, 1986 and 1987, and that boring logs and other information in the ground water monitoring plan shows a potential for sinkhole formation.
Regardless of the confusion in processing the County's request regarding the Ryals Road site, the County announced clearly and unequivocally at final hearing that it no longer wanted its request to reactivate the Ryals Road Percolation Pond System to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP). Rather, it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a), and it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit). Alternatively, and only if it was determined that Permit DO51-142683 no longer was in effect, the County wanted its request to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP) or as an application for a new operation permit.
Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit) expired on August 5, 1994.
Drainage Ditches in Oakley Grove and Moon Lake Percolation Pond Systems.
Drainage ditches are present at the Oakley Grove and several other County Percolation Pond Systems; they are proposed for the Moon Lake Percolation Pond System. (Drainage ditches are not present at the Ryals Road Percolation Pond System.)
A "relief drainage" system is a system of drainage ditches used to lower a high water table, which is generally flat or of a very low gradient.
There are 4 types of relief drainage ditch systems: parallel, herringbone, double main and random.
Correspondence between the County's consultants and the Department usually described the on-site drainage ditches at the County's percolation pond systems as "perimeter ditches." Although the County's ditches do not necessarily completely surround each pond, it is a fair description of the ditches. They are a network of ditches that, together, surround the sites. The network varies to some degree from site to site. Moon Lake Road Percolation Pond System is designed to have double main type drainage ditch system; Oakley Grove Percolation Pond System has a random type ditch system.
The County's consultants began referring to the ditches as "perimeter ditches" in part because it was a term used by members of the Department's staff. But both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case.
Ground water will seep into the relief drainage ditches at the County's percolation pond system. During and after any rainfall event, water infiltrating into the ground in close proximity to a drainage ditch will be encouraged to seep into the ditch. During seasonally wet periods, when ground water elevations tend to rise above normal levels, ground water both on and off- site will seep into the ditches. After extreme rainfall events delivering large volumes of water to the site, elevated ground water mounding would occur and ground water will seep into the drainage ditches.
The invert elevations of the relief drainage ditches located at the County's percolation pond systems were set to the approximate normal water level elevation. As a result, the ditch inverts will normally be wet, and ground water normally will seep into ditches in normal weather conditions even if the water table is not being recharged by reclaimed water.
The principal design goals for the drainage features located at the County's percolation pond systems are: (a) ditch construction provides an inexpensive source of fill material; (b) using on-site ditch material allows pond bottoms to be kept higher above the water table; (c) ditches buffer adjacent property from recharge impacts; (d) ditches buffer the site from adjacent land use practices; (e) ditches provide a constant boundary condition by flattening seasonal fluctuation in rainfall, runoff, water table elevations and the potentiometric surface of the deeper aquifer system; (f) ditches serve to quickly drain rainfall that may hinder the recharge performance of the percolation ponds; (g) ditches provide a visible indication of site performance; and (h) ditches are part of the site's stormwater and overflow system.
Although the collection of reclaimed water in the ditches is not the primary goal of these drainage features, it is recognized that some reclaimed water would be collected in the ditches as a result of the use of the drainage features to improve the performance of the percolation ponds, depending on the application rate and weather conditions.
It is possible that reclaimed water applied to the percolation ponds will percolate into the ground and combine with native ground water, and that the resulting mixture will infiltrate the drainage ditches.
As with all land application systems, water applied to percolation ponds will migrate downgradient in the surficial aquifer system and blend with
other waters recharging this system. Surface waters downgradient from percolation pond cells, whether in the relief drainage ditches or off-site, will receive a blend of rainwater, direct runoff, water originating from the percolation ponds and ground water, in various proportions.
Most surface water is designed to leave the Oakley Grove site at the eastern discharge point. Surface water leaving the site at this point flows east under Interstate 75 and into a forested wetland, approximately 150 acres in size, located to the east of I-75. Surface water then flows from the southwest corner of the wetland into a linear wetland and channel system, which conveys water west, ultimately discharging into Big Cypress Swamp, another wetland system several thousand acres in size.
The other discharge point is from the southwestern corner of the Oakley Grove site. From the southwest outfall, surface water flows into a wetland and channel system that conveys water west and then north into Big Cypress Swamp.
Surface water also is designed to discharge from the Moon Lake Road site via two outfalls. Both are located on the east side of the site. Discharges would enter an adjacent cypress wetland system consisting of hundreds of acres and meander approximately two miles in a northeasterly direction to a point of intersection with the upper reaches of the Pithlachascotee River.
Status of Reclaimed Water Travelling 100 Feet or More from Percolation Pond Cells to Drainage Ditches.
The Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water. This practice is derived from Department rules and from the Department's expectation that effluent percolating into the ground water and travelling 100 feet through the soil no longer will have the characteristics of effluent, for permitting purposes, when it reaches the surface water body.
One hundred feet generally is recognized in the engineering field as usually sufficient area to permit adequate treatment, dilution and mixing of effluent as it travels through the soil matrix so to be virtually indistinguishable from normally occurring ground water, for permitting purposes, when it reaches the surface water body. The treatment, dilution and mixing of effluent occurs through a variety of chemical, biological, absorptive and physical processes that are well documented in the field of sanitary engineering.
Although the Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water, the facts of individual cases must be considered to determine whether treatment afforded by 100 feet of travel through the ground makes reclaimed water "virtually indistinguishable" from other ground water so as to be virtually indistinguishable from naturally occurring ground water, for permitting purposes, when it reaches the surface water body. This is reflected in the fact that Department's rules make 100 feet the minimum setback distance.
In contrast to diffuse discharges to nearby surface water bodies, the Department's rules treat discharges to surface waters via a ditch system that collects and concentrates reclaimed water differently. By rule, such discharges require a surface water discharge permit.
If reclaimed water travels through the ground far enough before infiltrating drainage ditches, it would be treated and diluted to the point that it is in fact indistinguishable in chemical or biological composition from native ground water and no longer should be considered reclaimed water or effluent. How far is the dispositive question in determining whether a surface water discharge permit will be required.
Setback Distance from On-Site Ditches to Percolation Ponds at Oakley Grove and Moon Lake Road Sites.
Relief drainage ditches at Moon Lake Percolation Pond System are designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the pond to the ditch invert.
Relief drainage ditches at Oakley Grove Percolation Pond System also were designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the percolation pond to the ditch invert. However, primarily as a result of changes to the drainage system required by SWFWMD as part of its permitting process, and minor siting imperfections which occurred during construction, parts of the drainage ditch system at Oakley Grove Percolation Pond System are located closer than 100 feet from the percolation ponds.
To locate all Oakley Grove drainage ditches 100 feet or more from the percolation ponds, it will be necessary to reduce the size of the ponds. In the new configuration, the design loading rate would have to be increased to .8 from
.58 gpd/ft2 (gallons per day per square foot) of pond bottom in order to maintain the .600 MGD design loading capacity of the Oakley Grove Percolation Pond System.
Even assuming the predicted hydraulic capacity of Oakley Grove site, the actual disposal capacity for the site cannot be determined until it is determined how much of a reduction in pond size is required. The County has not made those determinations yet.
Seepage of Reclaimed Water from Percolation Ponds at Oakley Grove Percolation Pond System to Drainage Ditches.
Although constructed with a design disposal capacity of .600 MGD, until recently the County has loaded the ponds at Oakley Grove under the Oakley Grove construction permit at an actual average rate of approximately .200 MGD. (Maximum actual loading has been approximately .250 to .270 MGD.) This average loading rate required effluent to be loaded onto the ponds at the rate of approximately .19 gpd/ft2 of pond bottom. In November, 1993, the County stopped loading the ponds at Oakley Grove.
During site visits to Oakley Grove on 4/15/91, 7/11/91, 7/12/91, 8/27/91, 10/12/93 and 12/7/93, Department personnel observed that ditch inverts, and some points even higher on berms on the pond side of ditch inverts, were wet and that water had collected in some the ditches, while other ditches and surface water outfalls were not wet. The wet ditches and berms seemed to correspond with the loading of ponds.
Rainfall at the Oakley Grove site during the 10-day period immediately preceding these Department site visits was as follows:
Site Visit | Inches of rainfall | Gallons of rainfall |
4/15/91 | 3.58 | 9,786,659 |
7/11/91 | 5.41 | 14,789,337 |
7/12/91 | 5.60 | 15,308,742 |
8/27/91 | 2.91 | 7,955,078 |
10/12/93 | 1.02 | 2,788,378 |
12/7/93 | 0.03 | 82,011 |
The precise source of all of the water saturating the wet berms and ditch bottoms observed by the Department personnel was not clear from the evidence. Some of the wet berms and ditch bottoms probably were the result of rainfall that collected in portions of the ditch system due to uneven grading during construction, modifications to the ditch system required by SWFWMD, and the County's maintenance practices. But the evidence also suggests that seepage was occurring from the percolation ponds to the drainage ditches, in some cases at points higher on berms on the pond side of ditch inverts.
It also was not clear from the evidence whether the apparent seepage from the percolation ponds into the drainage ditches was occurring more or less than 100 feet from the toe of the slope of the percolation ponds. If less, the seepage may be an indication that the hydraulic capacity of the site is not as great as predicted by computer flow models run in support of the application for a construction permit for the Oakley Grove site.
Oakley Grove was designed to recharge the surficial aquifer without short-circuiting the designed 100 foot setback from the percolation ponds to the drainage ditches, even at the design disposal capacity of .600 MGD. (Cady Prefiled, 175). The evidence of seepage at .200 MGD is an indication that the hydraulic capacity of the site may not be as great as designed.
Based on the assumed hydraulic capacity of the site, water balances prepared by the County assert that none of the water in the ditches would come from the percolation ponds at .200 MGD, or even at .300 MGD. The evidence of seepage at .200 MGD is another indication that the hydraulic capacity of the site may not be as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site.
The Oakley Grove relief drainage ditches were authorized by a SWFWMD Management and Storage of Surface Water ("MSSW") Permit (i.e., Permit #405124, issued 7/12/89). This permit established two surface water quality monitoring sites for the off-site discharge of water from the relief drainage ditches and requires that any water discharged off-site meet surface water quality standards. The County has collected data from these monitoring sites since 1991. This data does not indicate any violations of surface water quality standards due to the discharge of water from the relief drainage ditches to off- site receiving waters. (SWFWMD has never instituted an enforcement or compliance action against the County as a result of discharges from the relief drainage ditches to receiving waters, and Permit #405124 remains active.) However, the data indicate that the surface water quality has been worse, with respect to several parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for NOx-N, as high as .600 MGD.) This may be another indication that the hydraulic capacity of the site is not as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site.
MGD.
No load testing was done at Oakley Grove at more than .250 to .270
Even at the historical loading rate, the evidence did not reflect that
the County undertook to determine whether, under different weather conditions, reclaimed water was coming to the surface either in the drainage ditches or higher on berms on the pond side of ditch inverts. Nor was there evidence that systematic testing of the water quality in the ditches was conducted.
In light of the evidence of seepage into ditches, either more or less than 100 feet from the toe of the slope of ponds, it was not proven that the site has the capacity to accept effluent at the design rate of .8 gpd/ft2 of pond bottom.
It was, however, proven by evidence introduced as Department Exhibit
32 that .075 MGD is a hydraulic loading rate at which no discharge to the on- site ditch/swale features would occur under normal wet season groundwater conditions.
Alleged Settlement Offer.
Department Exhibit 32 is a January 27, 1992, letter from the County to the Department. It enclosed a letter to the County from the County's engineering consultant and an engineering report from a new hydrogeologic consultant to the County.
The January 27, 1992, letter referenced a December 16, 1991, meeting "concerning acceptable rated disposal capacity" for the Oakley Grove Percolation Pond System and states that the enclosed hydrogeology report "verifies the rated capacity [for Oakley Grove] at 75,000 gpd." (The report stated that its purpose was "to estimate a hydraulic loading rate at which no discharge to the on-site ditch/swale features would occur under normal wet season groundwater conditions.") It concluded that a hydraulic loading of the Wesley Chapel WWTP can be justified by combining the 75,000 gpd disposal capacity for Oakley Grove with the 100,000 gpd already permitted for the Saddlebrook Village Percolation Pond System.
Nowhere is Department Ex. 32 in fact identified as a settlement offer or as having any connection to a settlement offer in this or any other case.
It is found that Dept. Ex. 32 was part of the process by which the parties successfully negotiated the settlement of the County's permit for construction of a modification to the Wesley Chapel WWTP, Permit Application No. DC51-205143. The Department issued a permit for construction of a modification to the Wesley Chapel WWTP (with a .075 MGD limit on disposal at Oakley Grove) on August 31, 1992.
The County acceded to reduction of the actual disposal capacity at Oakley Grove pending the disposition of its application for an operation permit for Oakley Grove, and construction of the modifications was completed in late 1993.
Ground Water Quality at Oakley Grove.
During the time that Oakley Groves has been in operation, monitor wells have detected no violations of G-II ground water quality standards except for nitrates.
Analysis of initial ground water samples collected from monitor wells at Oakley Grove Percolation Pond System in approximately January, 1991, detected no nitrate violations. The first quarterly reports after the County started loading the ponds began showing exceedances for nitrates. Exceedances continued to be reported in every quarter until the County stopped loading the ponds in November, 1993.
Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System demonstrates that nitrate concentrations have gone down over time.
On average for the entire Oakley Grove Percolation Pond System, including upgradient background monitoring wells, nitrate concentrations have remained below the 10 mg/l Class G-II ground water quality standard for nitrate from approximately August, 1992, until the County stopped loading the ponds in November, 1993.
The most recent quarterly sampling of the monitor wells at Oakley Grove Percolation Pond System occurred in 11/93. The report was submitted to the Department in 1/94. It showed no exceedances of the Class G-II ground water quality standard for nitrate in any of the monitor wells. However, it is not clear from the evidence whether the reports reflected the effects of reclaimed water being applied to the site.
The reclaimed water applied to Oakley Grove Percolation Pond System probably is not the sole reason for the elevated nitrate concentrations that have been reported. Agricultural fertilizer was used at the site prior to acquisition by the County. Nitrates from the fertilizer have remained in the soil matrix. The loading of the ponds began to liberate the nitrates from the soil matrix and to flush the nitrates downgradient to the monitor wells. As the preexisting nitrates have been flushed out, nitrate levels have dropped.
Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System suggests that operation of the facility at historical loading rates (approximately .200 MGD) probably will not result in continued ground water quality violations. Systematic load testing would help answer the question more definitively.
Surface Water Quality Considerations.
The County did not intend for its percolation pond disposal systems either at Oakley Groves or at Moon Lake Road to result in a surface water discharge that would require a surface water discharge permit, and it has not applied for one at either site. Not having applied for a surface water discharge permit, the County has not submitted either a water quality-based effluent limitation (WQBEL) study or a plan to do a WQBEL study.
In lieu of a WQBEL study, the County presented evidence of surface water quality consisting primarily of an evaluation of estimated predicted contributions, concentrations and characteristics of inputs entering the drainage ditches and a prediction of water quality characteristics at the point of discharge, given various application rates.
Procedures commonly used and relied upon by water resource and sanitary engineers can be used to estimate the predicted quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates. The County utilized these procedures to predict, first, expected quality of water in the drainage ditches and, second, quality of water expected to be discharged off-site under various reclaimed water application rates.
In applying the procedures, the County used lower removal efficiencies than those allowed in the EPA Design Manual and did not take into account additional pollutant removal efficiencies that will occur as the water in the ditches migrates off-site, resulting in higher predicted levels of contaminants in the water discharged off-site. The County also assumed the accuracy of the studies and models supporting the disposal capacities for the sites.
Utilizing these procedures and assumptions, the County's evidence estimated the following predictions for Oakley Grove:
--At an application rate of .300 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N (ammonia) = 0.129 mg/l; NOx- N (nitrite-nitrate)= 0.141 mg/l; organic nitrogen = 0.177 mg/l; total nitrogen =
0.477 mg/l; CBOD5 (carbonaceous biological oxygen demand)= 0.2 mg/l; total phosphorus = 0.04 mg/l; and fecal coliform = 21 per 100 ml.
--At an application rate of .400 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.199 mg/l; NOx-N = 0.233 mg/l; organic nitrogen = 0.192 mg/l; total nitrogen = 0.672 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.056 mg/l; and fecal coliform = 20 per 100 ml.
--At an application rate of .500 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.549 mg/l; NOx-N = 0.695 mg/l; organic nitrogen = 0.268 mg/l; total nitrogen = 1.65 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.25 mg/l; and fecal coliform = 15 per 100 ml.
--At an application rate of .600 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.759 mg/l; NOx-N = 0.975 mg/l; organic nitrogen = 0.314 mg/l; total nitrogen = 2.23 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.36 mg/l; and fecal coliform = 12 per 100 ml.
--At all reclaimed water application rates at the Oakley Grove site, it was estimated that TSS (total suspended solids) in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch.
Utilizing the same procedures and assumptions, the County's evidence estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Moon Lake Road site at the design application rate of .185 MGD would be: NH3-N = 0.769 mg/l; NOx-N = 0.995 mg/l; organic nitrogen = 0.297 mg/l; total nitrogen = 2.25 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.37 mg/l; and fecal coliform = 3 per 100 ml. At the reclaimed water application rate proposed for Moon Lake Percolation Pond System, the County estimated that TSS in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch.
Using those predictions of the water quality characteristics of off- site discharges from the relief drainage ditches, the County presented evidence that predicted generally and in a conclusory fashion that surface water discharges would not adversely impact the environment downstream.
However, as already indicated, water quality monitoring for SWFWMD indicates water quality that has been worse at historical application rates, with respect to some parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for one parameter, as high as .600 MGD).
County Ex. 162 summarized the surface water monitoring results at Oakley Grove for November, 1992, through November, 1993:
East Outfall at I-75: NH3-N range less than 0.07-0.721 mg/l, and mean
0.157 mg/l; NOx-N range, less than 0.1-3.04 mg/l, and mean 0.416 mg/l; organic nitrogen range 0.250-1.10 mg/l, and mean 0.558 mg/l; total nitrogen range 0.510-
3.77 mg/l, and mean 1.31 mg/l; CBOD5 range less than 1-2.0, and mean 1.1 mg/l; total phosphorus range 0.020-0.190 mg/l, and mean 0.054 mg/l; T.S.S. range 1-16 mg/l, and mean 3.1 mg/l; and fecal coliform range 1-5300 per 100 ml, and mean
352 per 100 ml.
South Outfall at Trailer Park: NH3-N range less than 0.07-0.270 mg/l, and mean 0.125 mg/l; NOx-N range, less than 0.1-0.810 mg/l, and mean 0.285 mg/l; organic nitrogen range 0.285-1.01 mg/l, and mean 0.631 mg/l; total nitrogen range 0.533-1.85 mg/l, and mean 1.04 mg/l; CBOD5 range less than 1-3.0, and mean
1.4 mg/l; total phosphorus range 0.010-0.120 mg/l, and mean 0.053 mg/l; T.S.S. range 1-16 mg/l, and mean 3.9 mg/l; and fecal coliform range 2-560 per 100 ml, and mean 50 per 100 ml.
In addition, contrary to the County's predictions, estimates and arguments that surface water discharges from the Oakley Grove site will be "virtually indistinguishable from naturally occurring ground water," the surface water quality monitoring for SWFWMD at historical application rates indicates that water quality has been clearly distinguishable from naturally occurring ground water. The surface water discharges from the Oakley Grove site clearly have had higher levels of NOx-N and organic nitrogen than the water quality measured at the background monitoring station. In addition, pH levels have been significantly higher (approximately 7.35 versus 5.81).
As previously found, the evidence suggests that seepage from the percolation ponds to the drainage ditches has occurred at the Oakley Grove site at application rates of approximately .200 MGD. That evidence belies the assumptions underlying the County's surface water quality predictions at Oakley Grove and suggests that the site may not have the hydraulic and disposal capacities on which the surface water quality predictions for Oakley Grove were based.
Until the actual hydraulic capacity and disposal capacity of the Oakley Grove site are determined, it is not possible to accurately predict the quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates (except that there was evidence to prove that no seepage into the ditches would occur at application rates of up to
.075 MGD.)
In contrast to the Oakley Grove site, no load testing of the Moon Lake Road site is possible until it is constructed.
The County presented evidence that nitrogen would be absorbed by plants and sediments downstream from the point of discharge. However, the evidence assumed that discharges would take place only in the wet season. Potential downstream impacts resulting from a dry season discharge would depend upon: (1) the amount of water coming off the site; (2) the amount of water in the receiving wetlands; (3) the duration of the discharge; and (4) the frequency of the discharge. The County's evidence did not examine the impact of discharges under those conditions.
The County did not present evidence quantifying the amount of anticipated inorganic nitrogen discharge, the rate of uptake in sediments or plants, and the impacts downstream. The potential for imbalance of flora and fauna downstream, the biological integrity downstream, and degradation downstream likewise were addressed only in a general and conclusory fashion. No in-depth study of downstream biology was completed by the County.
As for pH, there was evidence that the background wetland had a pH of
5.81 in standard units, while the ditch discharge has had a pH of 7.35 in standard units.
Standard units of pH are logarithmic values. The numbers are actually powers of 10 and cannot simply be added together and divided by 2 to get an average pH. To get an average pH, you have to convert the pH from the logarithmic value to the actual concentration of the hydrogen ion, take the average, and then convert the average to a logarithmic value. Using this method, the average of a pH of 5.81 standard units and a pH of 7.35 standard units equals 6.1 standard units.
Wetlands are very sensitive to the decreases in acidity reflected by higher pH values. The County's predicted surface water quality analyses did not address pH at all.
The County's evidence did not include an examination of existing downstream conditions and projecting potential discharge impacts.
The County did not model dissolved oxygen downstream of discharge points and did not survey the biological community of the receiving waters regarding any discharge to determine what impact, if any, a potential discharge would have on waters of the state.
Surface water quality considerations were not assessed in relation to the volume and frequency of the discharge. In addition, the County did not sample and analyze water quality in downstream receiving waters.
Other Considerations at Moon Lake Road
In evaluating the County's Moon Lake Road application for completeness, the Department requested that the County conduct a fracture trace analysis and, if it indicated a higher likelihood of subsidence or sinkholes, a ground-penetrating radar (GPR) study. The County refused to do either, citing a desire to save County taxpayers money.
Karst geology is typical in Pasco County. The County's site specific study of the Moon Lake Road site indicates the potential for karst activity by
the presence of depressional features within and immediately adjacent to the site. It also indicates the presence of sinkholes on an immediately adjacent property.
Starkey Wellfield is a regional public water supply wellfield located in Pasco County, which is part of the water supply network operated by West Coast Regional Water Supply Authority ("WCRWSA").
Starkey Wellfield currently operates under a consumptive use permit ("CUP") issued in 1988. The CUP authorizes the production of water from this facility at the annual average rate of 15 MGD and the maximum rate of 25 MGD.
The nearest production well at the Starkey Wellfield is located slightly over half a mile from Moon Lake Road Sprayfield and slightly less than three-quarters of a mile from the Moon Lake Road Percolation Pond System.
Water levels at the Moon Lake Road site probably will decline only about 0.7 foot due to the production of water from Starkey Wellfield. This decline is too small to significantly increase the potential for sinkhole formation or subsidence at the Moon Lake Road site.
If the Moon Lake Road Percolation Pond System and Sprayfield can be operated in a safe and environmentally sound manner, it might be able to provide valuable recharge to the water table and the lower lying aquifer units. (This could reduce impacts caused by the wellfield.) But if there already is a sinkhole, or the high potential for one, at the Moon Lake site, use of the site for the disposal of reclaimed water could have a serious adverse effect on the Starkey Wellfield public water supply.
Under these circumstances, it is found that the County has not yet given reasonable assurances that the Moon Lake Road site can be operated in a safe and environmentally sound manner.
Evidence on Elements of Estoppel.
The "Representations."
Prior to the filing of the pending Oakley Grove operation permit application and Moon Lake Road construction permit projects, the Department had evaluated and permitted other similar County percolation pond systems (utilizing a system of drainage ditches to improve performance during wet weather conditions) in other locations.
Saddlebrook Village
Saddlebrook Village Percolation Pond System has a design disposal capacity of .15 MGD and a permitted capacity of .098 MGD. The initial construction permit application (#DC51-140007) for this facility was filed in 9/87. The Department issued Permit DC51-140007 on 12/21/87.
Specific Conditions 7 and 8 of Permit DC51-140007 address the relief drainage ditch system. These conditions require sampling and analysis of any off-site discharge from these ditches for primary drinking water standards, flow, dissolved oxygen ("DO"), pH, biological oxygen demand ("CBOD5") and total suspended solids ("TSS"). The County accepted those conditions.
Saddlebrook Village Percolation Pond System was constructed pursuant to Permit DC51- 140007. Thereafter, the County applied for a construction permit (#DC51-145550) in 2/88 to expand the system's disposal capacity to .250 MGD. The application sought to construct additional percolation pond basins and extend the ditch system to the new pond area.
The Department approved the County's application for Permit DC51- 145550 on 7/26/88. The permit issuance was preceded by an Intent to Issue finding that the County had provided reasonable assurances that the modified facility could be constructed and operated in accordance with applicable rules and standards.
Specific Conditions 6, 6A and 7 of Permit DC51-14550 address the drainage ditch system. These conditions limit flow out of the drainage ditches to the rainy season and then only when the perimeter ditch flow does not exceed the upstream flow of the receiving water. The conditions also establish maximum effluent limits of 5 mg/l for CBOD5 and TSS, 3 mg/l for total nitrogen, 1 mg/l for total phosphorus and non-detectable for fecal coliform. Finally, the conditions require sampling and analysis of any off-site discharge from these ditches for flow, primary and secondary drinking water standards, dissolved oxygen, total nitrogen, total phosphorus, fecal coliform, pH, CBOD5, and TSS. The County accepted those conditions.
Saddlebrook Village Percolation Pond System has operated pursuant to Permit DC51-145550, as needed through the final hearing. The surface water quality information required pursuant to Specific Conditions 6, 6A and 7 of Permit DC51-14550 has been presented to the Department. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permits DC51-140007 and DC51-14550. Also, the Department has never instituted an enforcement or compliance action due to discharges from the relief drainage ditches to off-site receiving waters.
Saddlebrook Village Percolation Pond System was never upgraded to the
.250 MGD capacity authorized by Permit DC51-14450. The County never applied for an operation permit covering this facility because the evolution of its wastewater system and changes in land use patterns resulted in the development of other disposal sites.
Shady Hills
Shady Hills Percolation Pond System is another of the County's percolation pond sites. Its design disposal capacity is .650 MGD, and its permitted capacity is .400 MGD.
The County's initial construction permit application (#DC51-160307) for Shady Hills Percolation Pond System was filed in 1/89 or 2/89.
The Department approved the County's application for Permit DC51- 160307 on 6/7/89. Permit issuance was preceded by an Intent to Issue dated 5/18/89 finding the County provided reasonable assurances that the facility could be constructed and operated according to applicable rules and standards.
Initially, Permit DC51-160307 did not contain special conditions addressing the presence of drainage ditches. However, it was amended on 7/24/89, and the amended permit was assigned identification number DC51-160307A. Specific Conditions 3 and 4 of Permit DC51-160307A address the drainage ditch system and require that the drainage ditch system must be maintained to preclude
off-site discharge of pollutants and that any water discharged off-site must meet state water quality standards.
Shady Hills Percolation Pond System was constructed pursuant to Permit DC51-160307A, and has operated from late 1990 to present. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permit DC51-160307A. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the relief drainage ditches to off-site receiving waters.
The County never applied for an operation permit covering Shady Hills Percolation Pond System because the associated WWTP is being expanded and the County decided to wait until the expansion program is completed to obtain the operation permit.
Lake Padgett
Lake Padgett (a/k/a, Land O'Lakes) Percolation Pond System is another of the County's percolation pond sites. Its design and permitted disposal capacity is 1.0 MGD. The initial construction permit application (#DC51-159899) for the facility was filed in 1989.
The Department granted the County's application for Permit DC51- 159899 on 5/16/89. The permit issuance was preceded by an Intent to Issue dated 4/27/89 finding that the County had provided reasonable assurances that the facility could be constructed and operated in accordance with applicable rules and standards. Specific Condition 15 of Permit DC51-159899 addresses the drainage ditches. It requires that any discharge of water from the ditch system to receiving waters must comply with Section 403.086, Florida Statutes (Grizzle- Figg standards).
The Lake Padgett Percolation Pond System was constructed and operated pursuant to Permit DC51-159899. The County obtained an operation permit (#DO51- 205681) for the system on 3/26/92. Specific Condition 20 of the operation permit addresses the relief drainage ditch system, and requires that any discharge of water from the ditch system to the receiving waters comply with Section 403.086. The facility has operated pursuant to Permit DO51-205681 since 3/26/92 to present.
Off-site discharges from the relief drainage ditches at the Lake Padgett Percolation Pond System have not resulted in violations of Permit DC51- 159899 or Permit DC205681. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the drainage ditches to off-site receiving waters.
Construction of Oakley Grove
The County conducted a site specific hydrogeologic and soil survey and effluent disposal study for the Oakley Grove site in late 1988. The County's initial construction permit application (#DC51-159755) for Oakley Grove Percolation Pond System was filed with the Department in 1/89.
The Department granted the County's application for Permit DC51- 159755 on 6/22/89. The design and permitted disposal capacity for Oakley Grove is .600 MGD.
The Oakley Grove permit issuance was preceded by an Intent to Issue dated 6/2/89 finding that the County had provided reasonable assurance that the facility could be constructed and operated in accordance with applicable rules and standards.
Permit DC51-159755 does not contain any special conditions addressing the drainage ditches. One reason for this is that the surface water management permit issued by the Southwest Florida Water Management District ("SWFWMD") for this site contains conditions requiring the County to monitor any off-site discharges from the drainage ditches and prohibiting any violation of surface water quality standards. Consequently, there was no need for the Department to impose a similar permit condition.
Oakley Grove Percolation Pond System was constructed under Permit DC51-159755. It was completed in 4/91 and has operated under that permit until approximately November, 1993. Oakley Grove Percolation Pond System's actual disposal rate during the period of operation has been about .200 MGD.
The "Detrimental Reliance."
The County paid $1,200,000 to acquire the Oakley Grove site. The County declined to purchase other potential sites that also would have cost about $1,200,000 in 1988, but would have cost about $1,800,000 in 1993.
Total costs for property acquisition, engineering and construction at Oakley Grove have been approximately $2,800,000.
In addition, the Shady Hills, Lake Padgett, and Handcart Road Percolation Pond Systems were constructed or modified at a cost of about
$2,600,000 after issuance of the construction permit for the Oakley Grove project.
To the extent that the County is unable to use the .600 MGD design disposal capacity at Oakley Grove, and cannot replace the deficit, the County will have insufficient disposal capacity.
It would cost the County over $500,000 to modify the Oakley Grove site so that it could make some other practicable use of the property, and it would take about 18 months and about $2,800,000 to construct and place into operation a replacement disposal facility. During the time it would take to construct and place into operation a replacement disposal facility for Oakley Grove Percolation Pond System, the County would have inadequate wet weather disposal capacity unless it can replace the deficit.
The County began planning a percolation pond system for the Moon Lake Road site in 1988, and paid $600,000 to acquire the site. The County does not own any of the potential effluent disposal sites that it passed over when acquiring the Moon Lake Road site. It would have cost about $660,000 to acquire a similar site in 1993.
If the County is not permitted to construct the Moon Lake Road site, it cannot make any practicable use of that site. It would take about 18 months and about $500,000 to construct and place into operation a replacement wastewater effluent disposal facility for the Moon Lake Road site. During that time, the County would have inadequate wet weather disposal capacity unless it can replace the deficit.
Alleged Default Permit for Moon Lake Road.
Upon receipt of the application for Permit DC51-189086, the Department sent the County a letter dated 12/12/90 requesting additional information. The 12/12/90 request for additional information cited some specific rules although not for each item of additional information sought.
The County's consulting engineer responded, on behalf of the County, to the request for additional information by letter to the Department's Permitting Engineer, dated 2/28/91. The County response stated that the County disagreed with the Department's "judgment" that the County's application was incomplete. But it also stated in pertinent part:
However, recognizing that responsible professionals disagree and the extent to which you are responsible for rejecting this work, we have attached appropriate information and clarifying responses to aid you in discharging your professional
duty. . . . Assuming we receive authorization from our client and that you accept full professional responsibility for the decision
we will consider modifying our documents accordingly. In any event we feel comfortable requesting that you consider our permit application complete.
On 3/26/91, the Department requested additional information. Again, the request cited some specific rules although not for each item of additional information sought. The County never responded.
Meanwhile, the parties began to discuss settlement. Finally, on 2/13/92, the Department issued its notice of intent to deny the application.
Subject Matter Index of Agency Orders.
The Department has no subject matter index of any of its orders taking action on permit applications between 1975 and 1981.
After 1981, the Department has had a subject matter index of its orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings.
There never has been a subject matter index of Department orders taking action on permit applications rendered in cases where there has not been a request to initiate formal or informal administrative proceedings. It would be impracticable, if not impossible, for the County to research such orders without a subject matter index.
There is no central repository or computer database for all Department permit decisions. Some of its permitting files are located in its main Tallahassee office but many also are located in its seven district offices.
Regardless of whether there is a central repository or computer database for orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings, there is no evidence that, after 1981, there have been any such
orders reflecting the Department's actual permitting practice with respect to percolation pond systems with drainage ditches.
It was not proven that the County was unable, by reason of permitting files being located in both the main Tallahassee office and the various district offices, to research the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. Research at the seven district offices would have been more costly than if all files were centrally located, but there is no reason in this case to believe that the additional cost would have been prohibitive.
Alleged Biased Review.
David Rhodes is an unlicensed environmental specialist employed by the Department's Southwest District Office. His responsibilities mainly consist of reviewing geotechnical and hydrogeologic information submitted in support of permit applications. He was the Department's primary reviewer for geotechnical and hydrogeologic information submitted in support of the County's applications for Permit DO51-194674 (Oakley Grove) and Permit DC51-189086 (Moon Lake Road), as well as Permit DC51-169994 (Handcart Road Percolation Pond System). He recommended denial of all three permit applications.
On 2/18/91, David Rhodes contacted a County employee, Marshall Hughes, concerning the County's construction permit application for the Handcart Road Percolation Pond System and suggested "off-the-record" that the County discharge its geotechnical consultant, Richard Mortensen, and replace the proposed percolation pond system with a sprayfield. The County declined to terminate Mortensen.
When Mortensen learned of David Rhodes's attempt to have the County fire him, Mortensen contacted David Rhodes's supervisor, Judith Richtar, on 3/4/91 to discuss this incident. Richtar told Mortensen that she was unaware of the matter, but would look into it and get back in touch with him. When Mortensen did not hear from Richtar for two weeks, he called her. She told him that David Rhodes had denied everything.
Mortensen later learned that David Rhodes made comments and insinuations to two of his other clients disparaging his work performance and suggesting that his engineering firm was not competent.
Mortensen was not satisfied with Richtar's handling of his complaint. On 4/25/94, he contacted Richtar's superior, Dr. Richard Garrity. Garrity asked for a letter detailing the incident. Mortensen wrote Garrity a letter dated 5/29/91 describing David Rhodes's communication with Hughes and requesting that Richtar be disciplined for her handling of this situation.
David Rhodes was suspended by the Department without pay; however, Richtar was not disciplined.
David Rhodes also wrote Mortensen a letter of apology for his communication with Marshall Hughes. The letter states his comments to Hughes should not be interpreted as a personal vendetta against Mortensen's engineering firm and that he hoped the incident could be put behind them so they could continue working on future projects.
Rhodes admitted that he felt embarrassed after Garrity suspended him without pay and suggested that he write a letter of apology to Mortensen.
About 3 months after David Rhodes's letter of apology, another Department employee, Joe May, filed 5 complaints with DBPR against Mortensen's
P.E. license. The complaints identified the Handcart Road, Moon Lake Road, Oakley Grove, Lake Padgett and Westchase projects. (All of these are County projects, except for Westchase.) The complaints identified Richtar as a "contact person."
Richtar knew about May's complaints before they were filed with DBPR and acquiesced to being identified in them as a contact person.
Like David Rhodes, May is an unlicensed environmental specialist employed in the technical support section of the Department's Southwest District Office in Tampa. His responsibilities include reviewing geotechnical and hydrogeologic information submitted in support of permit applications. However, he had no permit review involvement with respect to the Oakley Grove, Moon Lake Road, Handcart Road and Lake Padgett projects. Instead, the hydrogeological aspects of those projects were assigned to May's colleague, David Rhodes.
Mortensen's attorney responded to May's 5 complaints in January, 1992. Copies of Mortensen's technical reports were attached to the response, including the site specific studies he had prepared for the Oakley Grove and Moon Lake Road sites.
DBPR referred May's complaints and Mortensen's technical reports to an independent engineering firm, Geotechnical and Environmental Consultants, Inc. for review. This firm prepared a report on January 21, 1993. The report exonerated Mortensen and found that May's complaints were without merit.
DBPR took May's 5 complaints before a probable cause panel of the Board of Professional Engineers. The panel found there was no probable cause to pursue them. Mortensen was informed of this finding by DBPR's 8/31/93 letter.
The Department has allowed David Rhodes to remain on the permit review team on the County's permit applications for the Oakley Grove and Moon Lake Road Percolation Pond Systems despite the fact Mortensen is the geotechnical consultant on these projects.
It is not found that the continued presence of Rhodes and Richtar on the permit review team for the County's permit applications demonstrates the Department's prejudice against the County and its consultants.
It is not found that the Department's decisions to deny the County's permit applications in this case were interposed for an improper purpose or that the denials were based on the permit reviewers' personal animosity against the County and its consultants, rather than on the merits of the facilities.
However, relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation.
CONCLUSIONS OF LAW
Construction and Operation Permits Generally.
Section 403.0881, Fla. Stat. (1993), authorizes the Department to issue both permits for the construction of sewage systems, treatment works, or disposal systems disposal systems and, upon a demonstration that a constructed system operates as designed, permits for the operation of the system. Section 403.088, Fla. Stat. (1993), authorizes the Department to issue or deny operation permits to persons intending to discharge wastes into waters of the state. "Persons" include the County. Section 403.031(5), Fla. Stat. (1993). "Waters" includes "underground waters," i.e., ground water.
Application procedures and criteria for construction and operation permits are set forth in Parts I and II of F.A.C. Rule Chapter 17-4. F.A.C. Rule 17-4.070 provides that the Department may issue a construction or operation permit only if the applicant affirmatively provides reasonable assurance that the permitted activity will not discharge, emit, or cause pollution in contravention of Department standards or rules. Permits can be issued with special conditions to provide reasonable assurance.
Mootness of Ryals Road Site.
As reflected in the Findings of Fact, the County never formally withdrew or surrendered its operation permit DO51-142683 for the operation of the Oaks Royal WWTP and Ryals Road Percolation Pond System. Rather, the County's laboratory supervisor merely noted on routine monitor well sampling reports to the Department that the Oaks Royal WWTP no longer was being operated and that monitor wells at the Ryals Road site had been destroyed and were not being replaced. The Department never took action to revoke or terminate the Oaks Royal/Ryals Road operation permit and never gave the County notice of intent to do so.
Regardless of the confusion in processing the County's request regarding the Ryals Road site, as reflected in the Findings of Fact, the County announced clearly and unequivocally at final hearing that it no longer wanted its request to reactivate the Ryals Road Percolation Pond System to be treated as a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP). Rather, it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a), and it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit).
F.A.C. Rule 17-4.040(1)(a) exempts from the permit process structural changes that will not change the quality, nature or quantity of air and water contaminant emissions or discharges.
Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit) was issued in August, 1989, and expired August 5, 1989. Since Permit DO51-142683 has expired, it is concluded that the County's requests which are the subject matter of Case No. 92-1654, relating to the Ryals Road site, are now moot.
On October 18, 1994, the Department referred to the Division of Administrative Hearings (DOAH) the County's Petition for Formal Administrative Hearing on the Department's notice of intent to deny the County's application to renew Permit DO51-142683. The new case was given DOAH Case No. 94-5876 and was
assigned to this hearing officer on October 26, 1994. The assignment of Case No. 94-5876 was the first notice to the hearing officer that the County applied to renew Permit DO51-142683.
Allegations of Previous Noncompliance.
Under F.A.C. Rule 17-4.070(5), previous noncompliance can be considered when determining reasonable assurance.
Contrary to the County's arguments, the administrative decisions in Saltiel v. Leon County School Bd., 13 F.A.L.R. 3892 (DER 1991), and Container Corp. of Amer. v. Dept. of Environmental Reg., 12 F.A.L.R. 3731 (DOAH 1991), do not prohibit consideration of previous noncompliance, whether or not notices of violations have been issued.
Saltiel was nothing more than the denial of an exception, filed in a permit application case, to the effect that the Department should have taken enforcement action. Saltiel simply stated that, for purposes of the permit application case, it was irrelevant whether the Department took enforcement action, since F.A.C. Rule 17-4.070(5) authorized the Department to consider previous noncompliance when determining reasonable assurance in a permit application case, regardless whether the Department took enforcement action.
Container Corp. invalidated portions of a previous iteration of
F.A.C. Rule 17-4.070(5) that prohibited the issuance of a permit so long as enforcement action was pending in part for the reason that the unchallenged part of F.A.C. Rule 17-4.070(5) authorized the Department to consider previous noncompliance when determining reasonable assurance in a permit application case regardless whether the Department took enforcement action.
In this case, prior noncompliance was cured and was not such as to preclude granting the applications in issue if other requirements were met.
Applicability of F.A.C. Rule 17-610.517(2).
Part IV of F.A.C. Rule Chapter 17-610 sets forth design and performance criteria applicable to rapid rate infiltration basins (percolation ponds).
F.A.C. Rule Chapter 17-610 pertains to "Reuse of Reclaimed Water and Land Application." F.A.C. Rule 17-610.517 is entitled "Surface Runoff Control." Paragraph (1) of the rule requires that the land application site be designed to prevent the entrance of surface runoff, if necessary by placement of berms around the application area for this purpose. Paragraph (2) of the rule provides:
Discharge from perimeter drainage features that collect reclaimed water after land application, shall be restricted by surface water quality considerations pursuant to additional treatment or WQBEL provisions of Rules 17-600.420(2) and 17-600.430, F.A.C.,
respectively. Rapid-rate land application systems that result in the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as effluent disposal systems.
The Department is in the process of amending part (2) of the rule by separating the sentences and making the second sentence a new part (3) of the rule.
It was concluded in the Final Order simultaneously entered in the case of Pasco County v. Dept. of Environmental Protection, DOAH Case No. 94- 0001RX, that F.A.C. Rule 17-610.517(2) is valid.
Based on the Findings of Fact, it is concluded that the County has not proven that drainage ditch features at the County's Oakley Grove site, at application rates in excess of .075 MGD, and those designed to be constructed at the Moon Lake Road site do not constitute "perimeter drainage features that collect reclaimed water after land application," as described in F.A.C. Rule 17- 610.517(2).
Application of F.A.C. Rule 17-610.517(2).
F.A.C. Rule 17-600.420(2), which applies to domestic wastewater facilities, provides for additional levels of treatment in the design of new facilities and modifications to existing facilities to achieve pollutant reduction to levels beyond that specified by secondary treatment. (Such additional treatment also is required for discharges into Class I waters of the State.) Among other things, the additional treatment must be sufficient to enable reclaimed water or effluent discharge to meet water quality standards under F.A.C. Rule 17-600.430 (no mixing zone allowed), to receive high level disinfection, have total nitrogen not to exceed 10 milligrams per liter, and to contain maximum pollutant levels less than those specified in F.A.C. Rule Chapter 17-550 for community water systems.
The County did not prove that either the reclaimed water being applied to the County's Oakley Grove site or the reclaimed water to be applied to the County's Moon Lake Road site meets the additional treatment requirements described in F.A.C. Rule 17-600.420(2).
F.A.C. Rule 17-600.430, which applies to domestic wastewater facilities, authorizes the Department to require that the design of facilities provide additional treatment to satisfy water quality standards for receiving surface waters. It also requires the Department to determine WQBELs (water quality based effluent limitations) in accordance with F.A.C. Rule Chapter 17- 650, to base them on the characteristics of the discharge, the receiving water characteristics, and the criteria and standards of F.A.C. Rule Chapters 17-3, 17-4, and 17-302, and to determine them by application of accepted scientific methods. It provides that accepted scientific methods shall be based upon:
An analysis of the condition of the receiving body of water, including reasonable expected ambient water quality, present and future flow conditions, and present and future character-
istics of the discharge, under which the cumulative impact of discharge is reasonably expected to be a maximum; and
The nature, volume, and frequency of the proposed discharge of waste, including any possible synergistic effects with other pollutants or substances which may be present in the receiving body of water.
If appropriate, WQBELs can vary on a seasonal or other basis.
F.A.C. Rule 17-302.300(3) contains the Department's prohibition against the degradation of state surface waters, particularly the introduction of man-induced nutrients such as total nitrogen. Paragraph (6) also requires the denial of an application for a permit that would reduce the quality of the receiving waters below the classification established for them or would violate any Department rule or standard.
F.A.C. Rule 17-302.500(1)(c) requires that all surface waters of the State remain free from man-induced non-thermal components of discharges which, alone or in combination with other substances, are acutely toxic.
F.A.C. Rule 17-302.530 contains both numeric and narrative surface water quality criteria for various parameters to be applied except within zones of mixing, including the following:
Paragraph (11)(c) of the rule provides in pertinent that, in Class III Fresh Waters,
the index for benthic macroinvertebrates shall not be reduced to less than 75 percent of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from
a minimum of three Hester-Dendy type artificial substrate samplers, taken with Ponar type samplers with minimum sampling area of 225 cm2.
Paragraph (47) of the rule prohibits the introduction of substances in concentrations which result in the dominance of nuisance species.
Paragraph (48)(b) of the rule provides, in pertinent part, that the discharge of nutrients shall continue to be limited as needed to prevent violations of other standards in F.A.C. Rule Chapter 17-302 and that man-induced nutrient enrichment, such as total nitrogen, shall be considered degradation in relation to the provisions of F.A.C. Rules 17-302.300, 17- 302.700 and 17-4.242.
Paragraph (52)(c) of the rule provides in pertinent that, expressed in standard units, pH shall not vary more than one unit above or below natural background of predominantly fresh waters and coastal waters.
These criteria are to be read in conjunction with other provisions in water quality standards, including F.A.C. Rules 17-302.500 and 17-302.510, which apply to all waters unless alternative or more stringent criteria are specified in Rule 17-302.530.
F.A.C. Rule 17-650.500(5) provides that, when a WQBEL Level II study is necessary, the applicant and the Department together must decide upon the information required, that accepted methods of data collection and analysis, and quality control/quality assurance requirements. The ensuing plan of study must be approved by the Department. Paragraph (6) of the rule provides that, before conducting the study, a Notice of Proposed Water Quality Study must be published
in the Florida Administrative Code, and resulting comments must be received and considered. Paragraph (7) of the rule provides that, after completion of the Level II data collection and analysis process, the WQBEL limits are determined and described in a final technical report prepared by the Department.
From the evidence presented in this case, it is clear that the County has not met the requirements of a Level II WQBEL study.
F.A.C. Rule 17-650.400(1) provides that a Level I WQBEL study is acceptable when data are sufficient to determine that the quality of the receiving body of water currently meets standards and is expected to continue to meet standards with the discharge. Paragraph (2) of the rule describes the requirements for a Level I study: WQBEL limits are to be determined based on a review of water quality data applicable to the portion of the water body potentially impacted by the discharge.
It is concluded that evidence presented by the County also does not meet the requirements of a Level I WQBEL study. There was no evidence that water quality data applicable to the portion of the water body potentially impacted by the discharge have been reviewed. The County evidence consisted of predictions and opinions on the impacts in the receiving waters based solely on predictions of water quality of the discharge. As reflected in the Findings of Fact, the validity of those predictions is suspect.
Fracture Trace Analysis and GPR.
As found, the County also has not given reasonable assurances that a construction permit for the Moon Lake Road site should be issued without the completion of a fracture trace analysis and, if indicated, a ground penetrating radar (GPR) analysis.
Arguments in the Nature of Estoppel.
The elements of equitable estoppel against a State agency are: (1) a representation by an agent of the State as to a material fact that is contrary to a later asserted position; (2) reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming the estoppel caused by the representation and the reliance. Harris v. Dept. of Admin., 577 So. 2d 1363 (Fla. 1st DCA 1991). It is well established that the doctrine of equitable estoppel is to be applied against the State only rarely and in exceptional circumstances. Dolphin Outdoor Advertising v. Dept. of Transp., 582 So. 2d 709 (Fla. 1st DCA 1991); Dept. of Environmental Reg. v. C.P. Developers, Inc., 512 So. 2d 258 (Fla. 1st DCA 1987).
The County contends that the Department is estopped to deny the permit applications in issue in these cases. As to both the County's application for an operation permit for Oakley Grove and its application for a construction permit for the Moon Lake Road site, the County bases its contention on evidence of prior Department approvals of construction and operation permits at other sites with similar drainage features, including the Oakley Grove construction permit. In the case of the Oakley Grove application, the County also argues that, as a matter of law, the issuance of a construction permit for Oakley Grove itself estops the Department from denying the application for an operation permit, given the engineer's certification of completion of construction as designed.
The County's argument as to Oakley Grove is flawed both factually and legally. Factually, as found, some of the ditches were not constructed 100 feet from the wetted edge of the percolation pond bottoms, as certified. Legally, the issuance of a construction permit does not estop the Department from denying an operation permit, even if the project is built according to plans. By its very nature, a construction permit is issued based on assurances given from expected performance of a facility. The construction permit is required to allow the permittee a period of time, specified in the permit, not only to construct but also to operate and test the facility to determine compliance with Chapter 403, Fla. Stat. (1993), and Department rules. F.A.C. Rule 17-4.210(3). The operation permit may not be issued unless test results from the actual performance of the facility confirm earlier assurances of compliance. F.A.C. Rule 17-4.240(2). Issuance of the operation permit is not automatic.
In the case of Oakley Grove, as previously indicated, some of the ditches will have to be moved in order for the facility to conform to the construction permit. In addition, the evidence raises serious questions whether the Oakley Grove site performs as well as anticipated. These questions suggest that loading rates may have to be adjusted downward in order for the facility to perform as well as anticipated.
In addition, as to the Moon Lake Road site, the County did not prove that fracture trace analysis and, if indicated, ground penetrating radar (GPR) should not be performed at the site. Nothing the Department has done with respect to the previous sites can be interpreted as a representation that those studies would not be required at the Moon Lake Road site, if warranted.
Finally, it should be noted that, at this point in time, no determination can be made that either Oakley Grove or Moon Lake Road are not permittable at design capacity. It is possible that fracture trace analysis and, if indicated, GPR will confirm the suitability of the Moon Lake Road site; and it is possible that load tests and WQBEL studies, as required, will support the issuance of a surface water discharge permit for both sites.
The County argues that the decision in Reedy Creek Improvement District v. Dept. of Environmental Reg., 486 So. 2d 642 (Fla. 1st DCA 1986)(Reedy Creek II), applied equitable estoppel "under circumstances which were very similar to those present in this case." To the contrary, the exceptional circumstances found in Reedy Creek II were significantly different, and Reedy Creek II does not support equitable estoppel in this case.
Prior to Reedy Creek II, the Department had brought an enforcement action against a utility company in circuit court. The circuit court ordered the utility to submit a permit application, ordered the Department to expedite the application process, required the utility to complete construction within 15 months, and prohibited any further violations after the construction period. The utility applied for the permit, and the Department issued and published notice of intent to grant the permit. No timely objections were filed, and the Department issued the permit. When the Reedy Creek Improvement District received a copy of the permit, it filed a petition for a formal administrative hearing, contending that the utility's application should have been denied. The Department denied the petition as untimely, but the appellate court reversed the Department and remanded for further proceedings. Reedy Creek Improvement District v. Dept. of Environmental Reg, 447 So. 2d 313 (Fla. 1st DCA 1984)(Reedy Creek I). The utility went forward with financing and construction for completion within 15 months from issuance of the permit, as ordered by the circuit court. In the administrative proceedings on remand, the hearing officer
recommended permit denial, but the Department's final order held that, under the unique facts of the case, especially the circuit court order, the Department was estopped to deny the permit. The appellate court in Reedy Creek II agreed.
It is concluded that the County's evidence is not sufficient to establish the elements of estoppel. The Department's prior approvals of construction and operation permits for percolation pond systems with drainage ditch features did not constitute an affirmative representation that the Department always would grant construction and operation permit applications for percolation pond systems with drainage ditch features.
Alleged Moon Lake Road Default Permit.
The County contends that it is entitled to a default permit on its Moon Lake Road application under Sections 403.0876(2) and 120.60(2), Fla. Stat. (1993).
198. Section 403.0876(2)(a), Fla. Stat. (1993), provides:
A permit shall be approved or denied within 90 days after receipt of the original application, the last item of timely requested additional material, or the applicant's written request to begin processing the permit application.
(Emphasis added.) Similarly, Section 120.60(2), Fla. Stat. (1993), provides in pertinent part:
Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law.
. . . Any application for a license which is not approved or denied within the 90-day or shorter time period . . . shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued.
(Emphasis added.) The parties seem to be in agreement that, to the extent that the two statutes differ, Section 403.0876(2)(a) controls since it applies specifically to DEP permits.
In this case, it is clear that the Department's notice of intent to deny the Moon Lake Road application was long after 90 days from the initial application, which was filed on or about November 13, 1990. But the Department requested additional information on 12/12/90, and the County responded on 2/28/91. On 3/26/91, the Department requested additional information, and the County never responded. Meanwhile, the parties began to discuss settlement. Finally, on 2/13/92, the Department issued notice of intent to deny the application.
The first issue on this point is whether the County's 2/28/91 response constitutes a "written request to begin processing the permit
application," as referenced in Section 403.0876(2)(a). On this point, F.A.C. Rule 17-4.055 comes into play. Paragraphs (4) and (5) of the rule provide:
If the applicant believes that the request of the Department for such additional information is not authorized by law or rule, the Department, at the applicant's request, shall begin to process the permit application. Such a request by the applicant shall be in writing and shall be clearly labeled as a request for the Department to process the application. The applicant's request shall state the reasons why the applicant believes the Department's request for additional information
is not authorized by law or rule. The applicant shall clearly state that the applicant requests the Department to process the application without that information. The applicant's request shall be submitted to the Department office which made the request.
Permits shall be approved or denied within
90 days after receipt of the original application, the last item of timely requested additional material, or the applicant's written request to begin processing the permit application, whichever occurs last.
(Emphasis added.)
In this case, the County's 2/28/91 response was not "clearly labeled as a request for the Department to process the application," did not "state the reasons why the applicant believes the Department's request for additional information is not authorized by law or rule," and did not "clearly state that the applicant requests the Department to process the application without that information." Instead, the County responded to the request for additional information. Before responding to the 12/12/90 request for additional information, the County's response stated: "In any event we feel comfortable requesting that you consider our permit application complete." But the County never made any response to the Department's 3/26/91 request for additional information.
The County also argues that the 3/26/91 request for additional information was defective in that it was "unaccompanied by rule citations explaining why this information was relevant as required by s. 403.0875, Fla. Stat." Section 403.0875, Fla. Stat. (1993), provides:
In addition to any other provisions within this part or any rules promulgated hereunder, the permitting agency shall, when requesting information for a permit application pursuant
to this part or such rules promulgated hereunder, cite a specific rule. If a request for information cannot be accompanied by a rule citation, failure to provide such information cannot be grounds to deny a permit. (Emphasis added.)
In this case, the 3/26/91 request for additional information did cite specific rules although not for each item of additional information sought.
Even for those items, the County did not prove that the Department's request for information cannot be accompanied by a rule citation, but only that a rule citation did not accompany each request.
Even if the Department had been unable to supply rule citations for parts of its 3/26/91 request for additional information, the County did not properly raise the issue by exercising its rights under F.A.C. Rule 17-4.055(4)-
-i.e., by stating the "reasons why the applicant believes the Department's request for additional information is not authorized by law or rule," and making a legally sufficient request that the Department process the application with the additional information. Instead, it did not respond to the 3/26/91 request for additional information at all.
Even if the Department had been unable to supply rule citations for parts of its 3/26/91 request for additional information, and the County had properly raised the issue, the only remedy provided by Section 403.0875, Fla. Stat. (1993), is that "failure to provide such information cannot be grounds to deny a permit." In this case, the Department has not been permitted to limit the issue to whether the County provided requested additional information; rather, the merits of the Moon Lake Road application have been fully considered.
Alleged Oakley Grove Settlement Offer.
The County seeks to exclude Department Exhibit 32 from evidence on the ground that it was an "offer to compromise a claim" or "relevant conduct or statements made in negotiations concerning a compromise." (The County also invokes Section 90.407, Fla. Stat. (1993), but it clearly does not apply.) Section 90.408, Fla. Stat. (1993), provides:
Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.
It need not be decided whether Section 90.408, and the public policy behind it, requires the exclusion of such evidence in an administrative proceeding under Section 120.58(1)(a), Fla. Stat. (1993). (The question would appear to hinge on whether Section 90.408 is a "privilege" for purposes of
F.A.C. Rule 60Q-2.026(3).) It is concluded that Department Ex. 32 would not fall in the category of an "offer to compromise a claim" or "relevant conduct or statements made in negotiations concerning a compromise."
Nowhere is Department Ex. 32 identified as a settlement offer or as having any connection to a settlement offer in this or any other case. Cf. Southeast Capital Investment Corp. v. Albemarle Hotel, Inc., 550 So. 2d 49 (Fla. 2d DCA 1989). It stated that it "verifies the rated capacity [for Oakley Grove] at 75,000 gpd." It also stated that the purpose of the attached report of the County's new hydrogeologist was "to estimate a hydraulic loading rate at which no discharge to the on-site ditch/swale features would occur under normal wet season groundwater conditions."
Dept. Ex. 32 actually may be considered part of the process by which the parties successfully negotiated the settlement of the County's permit for construction of a modification to the Wesley Chapel WWTP, Permit Application No. DC51-205143. But the Department issued a permit for construction of a
modification to the Wesley Chapel WWTP (with a .075 MGD limit on disposal at Oakley Grove) on August 31, 1992. The County acceded to reduction of the actual disposal capacity at Oakley Grove pending the disposition of its application for an operation permit for Oakley Grove, and construction of the modifications was completed in late 1993.
Under these circumstances, there is no reason why Section 90.408, Fla. Stat. (1993), should be utilized to exclude Dept. Ex. 32. It is concluded that Dept. Ex. 32 is admissible over the County's objection.
Subject Matter Index.
The County argues that its applications must be granted upon the authority of Gessler v. Dept. of Business and Prof. Reg., 627 So. 2d 501 (Fla. 4th DCA 1993), on the ground that the Department does not maintain and make available to the public a subject matter index that conforms to the requirements of Section 120.53(2)(a), Fla. Stat. (1993). Specifically, the County cites evidence that the Department has no central repository or computer database for all Department permit decisions, no subject matter index of any of its orders taking action on permit applications between 1975 and 1981, and no subject matter index of Department orders taking action on permit applications rendered after 1981 in cases where there has not been a request to initiate formal or informal administrative proceedings.
Section 120.53(2)(a), Fla. Stat. (1993), provides in pertinent part:
Each agency shall make available for public inspection and copying, at no more than cost:
* * *
A current subject-matter index, identifying for the public any . . . order as specified in this subparagraph. In lieu of the requirement for making available for public inspection and copying a hierarchical subject-matter index of its orders, an agency may maintain and make available for public use an electronic data base of its orders . . .. The agency orders that must be indexed, unless excluded under paragraph (c) or paragraph (d), include:
Each final agency order resulting from a proceeding under s. 120.57(1) or (2);
Each final agency order rendered pursuant to
120.57(3) which contains a statement of agency policy that may be the basis of future agency decisions or that may otherwise contain a statement of precedential value;
Each declaratory statement issued by an agency; and
Each final order resulting from a proceeding under s. 120.535, s. 120.54(4), or s. 120.56.
(Emphasis added).
Under Section 120.53(2)(a), the Department had no duty to maintain a subject matter index of Department orders taking action on permit applications rendered in cases where there has not been a request to initiate formal or informal administrative proceedings.
The Department apparently is in violation of Section 120.53(2)(a) for not maintaining any subject matter index of any of its orders taking action on permit applications between 1975 and 1981.
It is recognized that, under Section 120.68(8), Fla. Stat. (1993): "Failure of any agency to comply with s. 120.53 shall be presumed to be a material error in procedure." But in this case the County apparently was unable to locate any such orders, in cases where there was a request to initiate formal or informal administrative proceedings, reflecting the Department's actual permitting practice with respect to percolation pond systems with drainage ditches since 1981. It is not likely that the County would have been able to find any such orders rendered before 1981. Even if there were any such orders to be found, they would have been so remote in time as to have been of minimal precedential value. For these reasons, it is concluded that the County did not prove that the Department's apparent violation of Section 120.53(2)(a) was a material error in procedure or a failure to follow prescribed procedure that either impaired the fairness of these proceedings or the correctness of final agency action taken in these proceedings. See Section 120.68(8), Fla. Stat. (1993).
It also is noted that the Gessler court proposed to stay the imposition of sanctions in that license discipline proceeding pending agency compliance with Section 120.53(2)(a), Fla. Stat. (1993). It is not clear what remedy the Gessler court would propose in an environmental permitting case such as this. In any event, the Gessler court certified the issue to the Supreme Court, which was not required to rule on it due to a settlement.
Alleged Biased Review.
The County finally argues that personal animosity between one of the County's consulting engineers and two of the Department's reviewers, together with other circumstances, resulted in bias that tainted the Department's review of these applications. It was found that relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation. But the County did not prove that the continued presence of Rhodes and Richtar on the permit review team demonstrated the Department's prejudice against the County and its consultants, or that the Department's decisions to deny the County's permit applications in these cases were interposed for an improper purpose, or that the denials were based on the permit reviewers' personal animosities against the County and its consultants, rather than on the merits of the facilities.
Even if the Department's reviewers were biased, their role was to inform the agency's free-form decision whether to grant or deny the County's applications. The final decision has not yet been made. See McDonald v. Dept. of Banking & Finance, 346 So. 2d 569 (Fla. 1st DCA 1977). It was not proven, and cannot be assumed, that the final decision will be infected with bias as a result of the reviewers' personal animosities, if any.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order as follows:
In Case No. 92-1604:
Denying the County's amended application for a permit (application no.
DC51-189086) to construct a sprayfield reuse disposal system at .215 MGD and a rapid rate infiltration basin reuse (percolation pond) disposal system at .185 MGD at Moon Lake Road, subject to reconsideration after completion and review of a fracture trace analysis, a ground penetrating radar analysis (if needed), and an appropriate WQBEL study.
If the application subsequently is granted, including among the specific conditions (1) a requirement for systematic load testing and monitoring of ground and surface water quality under the construction permit, as a condition for issuance of an operation permit, and (2), if appropriate, requiring monitoring, reporting and safely repairing subsidences, collapse features and sinkholes in and around discharge points. See, e.g., Specific Condition 12, Hudson WWTP Permit DC51-130307 (County Ex. 170).
Case No. 92-1653:
Denying the County's amended application for a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.600 MGD, subject to reconsideration after completion and review of: (1) additional systematic load testing, (2) systematic monitoring of ground and surface water quality, and (3) an appropriate WQBEL study.
Granting the County a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.075 MGD, thereby supporting the operation of its Wesley Chapel Wastewater Treatment Plant to the extent of .075 MGD pending load testing, systematic monitoring and load testing and reconsideration of the application for an operation permit for more capacity, up to .600 MGD.
Denying the County's amended application for a permit (application no.
DO51-194674) to operate its Wesley Chapel Wastewater Treatment Plant at .600 MGD and limiting its capacity to the available permitted disposal capacity.
Case No. 92-1654:
Denying, as moot, the County's application for a permit (application no.
DO51-199516) to reactivate the operation of its Ryals Road rapid rate infiltration basin reuse (percolation pond) disposal system at .1075 MGD.
RECOMMENDED this 31st day of October, 1994, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 31st day of October, 1994.
APPENDIX TO RECOMMENDED ORDER
To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
1.-3. Accepted but subordinate and unnecessary.
Accepted and incorporated.
Speculative and unnecessary.
6.-12. Accepted and incorporated to the extent not subordinate or unnecessary.
13. Accepted but subordinate and unnecessary.
14.-30. Accepted and incorporated to the extent not subordinate or unnecessary.
31.-34. Accepted but subordinate and unnecessary.
35.-43. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary.
44. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary.
45.-53. Accepted and incorporated to the extent not subordinate or unnecessary.
54. Accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation should have been done.
55.-58. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary.
59. Rejected as not proven.
60.-61. Accepted but subordinate and unnecessary.
62. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation of soil permeability should have been done.
63.-76. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. ("Southwest" in 76. should be "Southeast.")
77.-79. Accepted but subordinate and unnecessary.
80.-92. Accepted and incorporated to the extent not subordinate or unnecessary.
Second sentence, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but subordinate and unnecessary.
95.-113. Accepted and incorporated to the extent not subordinate or unnecessary.
Conclusions of law.
First sentence, accepted but subordinate and unnecessary; second sentence, conclusion of law.
Conclusions of law.
117.-122. Accepted but generally subordinate and unnecessary. (There is no indication in this case that the Wesley Chapel WWTP cannot operate as
designed, as permitted for construction, and as constructed, subject to available disposal capacity.)
123.-148. Accepted but subordinate and unnecessary.
As to (c) and (d), rejected as not proven (Oakley Grove, without WQBEL studies, and Ryals Road without further investigation into significance of down-warping.) Otherwise, accepted: as to Ryals Road, moot, subordinate and unnecessary; as to Oakley Grove, incorporated to the extent not subordinate or unnecessary.
As to (c) and (d), rejected as not proven without WQBEL studies and fracture trace analysis and, if then indicated, GPR. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated.
Accepted but subordinate and unnecessary.
Accepted and incorporated.
154.-155. Accepted but subordinate and unnecessary.
156.-158. Accepted and incorporated to the extent not subordinate or unnecessary.
159. Rejected as not proven that the use of the label "perimeter ditches" is "not accurate" or that the County used the term only because the Department did. Rather, both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Otherwise, accepted and incorporated.
160.-161. Accepted and incorporated to the extent not subordinate or unnecessary.
162. Accepted in the sense that the collection of reclaimed water in the ditches was not the primary goal of the drainage system. However, it was recognized that the collection of some reclaimed water in the ditches, especially under some weather conditions, was a necessary result of the use of the drainage features to improve the performance of the percolation ponds.
163.-166. Accepted and incorporated.
167.-169. Rejected as not proven that the Department has "changed position" without promulgating any rule. The County's own permitting experience has shown that the Department has had concerns about the performance of percolation pond systems with perimeter drainage features. Those concerns have evolved over time. Before April, 1989, those concerns were given expression in special conditions in permits. In April, 1989, F.A.C. Rules 17-610.517(2) and 17-610.522 were promulgated. The evidence does not prove that, before 9/15/89, the Department would not ever consider water in drainage ditches 100 feet from percolation ponds to be "reclaimed water."
Accepted but subordinate and unnecessary.
Rejected as not proven that approval or denial would be "automatic." The question was whether WQBELs or Grizzle-Figg standards would be applied.
Rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches.
173.-174. Accepted but unnecessary. (Current practice simply reflects the application of the current rules.)
Rejected as not proven that the Department position had "completely changed," that the Department was "inalterably opposed to the ditches," or that the Department had before it the "reasonable assurances" provided at the other sites. Otherwise, accepted but subordinate and unnecessary.
Accepted but subordinate and unnecessary.
Again, rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. Otherwise, accepted but subordinate and unnecessary.
Accepted but subordinate and unnecessary.
Rejected as not proven.
Accepted but subordinate and unnecessary.
Rejected as not proven; also, subordinate and unnecessary.
Accepted but subordinate and unnecessary.
Rejected as not proven.
Rejected as not proven that the Department stipulated that F.A.C. Rule 17-610.517(2) does not apply. Also, conclusion of law.
Accepted but subordinate and unnecessary.
186.-187. The implication that the Department does anything other than follow F.A.C. Rule 17-610.521 is rejected as not proven and as conclusion of law.
188.-190. Rejected as not proven that reclaimed water infiltrating ditches at Oakley Grove and Moon Lake Road has been or will be "virtually indistinguishable" from other ground water. Otherwise, generally, accepted, and
100 feet should be enough in most circumstances. But the facts of individual cases must be considered to determine whether treatment afforded by 100 feet makes reclaimed water "virtually indistinguishable" from other ground water so as to no longer be considered reclaimed water. Also, the concentration of discharges via a ditch system is another factor to be considered.
191.-192. Accepted and incorporated.
193.-194. Rejected as not proven that they could be modified "easily" or without decreasing the permittable disposal capacity.
Accepted (assuming they are built as designed) and incorporated.
Last word should be "dry"; otherwise, accepted and incorporated.
Accepted and incorporated.
198.-201. Rejected in part as being subordinate to facts not proven and contrary to those found. (Cady's testimony explained some of the wet ditch bottoms, but not all of them, and not the wet slopes of the berms.) Other parts, accepted and subordinate to facts found.
202.-206. Generally accepted and incorporated to the extent not subordinate or unnecessary. (However, the approach makes certain assumptions, and the estimates or predictions will not be accurate if the assumptions are not. In the case of Oakley Grove, the assumptions concerning hydraulic capacity do not appear to have been accurate.)
207.-211. Rejected as not proven. See 202.-206., above.
212. Accepted and incorporated.
213.-219. Accepted and incorporated to the extent not subordinate or unnecessary. But see 202.-206., above.
220.-226. Rejected as not proven as to Oakley Grove. See 202.-206., above. Accepted as to Moon Lake Road. Accepted as predictions based on the given assumptions, particularly as to hydraulic capacity of the site.
227.-230. Recitation of the experts' opinions, accepted as accurate recitations. Rejected that plant-life utilization of inorganic nitrogen allays Fricano's concerns. To the exact contrary, his concern is that plant-life will utilize the inorganic nitrogen in ways organic nitrogen would not be used, leading to undesirable environmental impacts. Also, rejected as not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters.
231.-232. Accepted and incorporated.
233.-234. Rejected as not proven. (The County expert's opinion assumed only wet weather discharges. Also, not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters.)
235.-239. Accepted and incorporated to the extent not subordinate or unnecessary.
240.-243. Accepted but subordinate and unnecessary.
244. Accepted and incorporated to the extent not subordinate or unnecessary.
245.-248. Accepted but subordinate and unnecessary.
249. Rejected as not proven that this can be done "easily." See 193.- 194., above. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
250.-251. Rejected as not proven.
252.-253. For both: last two sentences, rejected as not proven; the rest, accepted but subordinate and unnecessary. (F.A.C. Rule Chapter 17-600 forms did not apply.)
Second and fourth sentences, rejected as not proven. The rest is accepted but subordinate and unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven.
257.-258. Accepted but subordinate and unnecessary.
259. Rejected as to the location of some ditches within 100 feet of the percolation ponds. Otherwise, accepted but subordinate and unnecessary.
260.-261. Accepted but subordinate and unnecessary.
262. Rejected as not proven.
263.-269. Accepted but subordinate and unnecessary.
270. Rejected as not proven.
271.-279. Accepted but subordinate and unnecessary.
Rejected as not proven.
Accepted and incorporated to the extent not subordinate or unnecessary. (The "change in policy" is reflected in F.A.C. Rules 17-610.517(2) and 17-610.522.)
Accepted and incorporated.
As to (b) and (c), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated.
As to (c), rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated.
287.-289. Rejected as not proven and as conclusion of law.
290. Accepted and incorporated.
291.-293. Accepted and incorporated to the extent not subordinate or unnecessary.
294.-295. Conclusions of law.
Accepted but subordinate and unnecessary.
Rejected as not proven and as conclusion of law.
Accepted but subordinate and unnecessary. 299.-301. Accepted and incorporated.
302. Accepted but subordinate and unnecessary.
303.-308. Rejected as not proven without WQBEL studies.
Rejected as not proven.
Rejected as not proven. (The SWIM plans were not in evidence, and it is not clear whether they incorporate by reference the permitting requirements at issue in these proceedings.)
311.-312. Accepted but subordinate and unnecessary.
Rejected as not proven.
Accepted but subordinate and unnecessary.
Rejected as not proven without WQBEL studies.
316.-317. As to (g) and (h), rejected as not proven without WQBEL studies.
Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
318.-323. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
324. Conclusion of law.
325.-326. Rejected as not proven.
Accepted but subordinate and unnecessary.
Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.)
First sentence, rejected as not proven; rest, accepted but subordinate and unnecessary.
330.-331. Subordinate and unnecessary. See 353.
332. Rejected as not proven.
333.-334. Subordinate and unnecessary. See 353.
335. Last sentence of 335., rejected as not proven; otherwise, accepted. 336.-350. Subordinate and unnecessary. See 353.
351. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary.
352.-353. Subordinate and unnecessary. See 353.
Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary.
Accepted but subordinate and unnecessary.
Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary.
Accepted but subordinate and unnecessary.
Conclusion of law.
Accepted and incorporated.
Accepted but subordinate and unnecessary.
361.-362. Rejected that it was an offer to settle this case. Otherwise, accepted but subordinate and unnecessary.
363.-367. Accepted but subordinate and unnecessary. 368.-371. Accepted and incorporated.
372.-401. Accepted but subordinate and unnecessary.
402. Rejected as not proven. (They result from a combination of the nitrates in the reclaimed water and nitrates imbedded in the soil matrix from prior agricultural use. Also, unlike the Oakley Grove site, nitrate exceedances were observed at Wildcat Grove before application of any reclaimed water.)
403.-405. Accepted and incorporated to the extent not subordinate or unnecessary.
406. Rejected as not proven that reclaimed water was being applied at the time. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
407. Rejected as not proven when nitrate exceedances will end. Otherwise, accepted and incorporated.
408. Rejected as not proven. See 406., above.
409. Rejected as not proven. See 407., above.
410.-416. Accepted but subordinate and unnecessary.
417. Accepted but subordinate and unnecessary. 418.-421. Rejected as not proven.
422. Accepted but unnecessary.
423. Rejected as not proven that their concerns are "unfounded" unless the source of reclaimed water is restricted to Deer Park WWTP. Otherwise, accepted but unnecessary.
424. Assuming performance in accordance with the application, accepted but unnecessary.
425.-430. Accepted and incorporated to the extent not subordinate or unnecessary.
431. First sentence, accepted and incorporated to the extent not subordinate and unnecessary; second sentence, rejected as not proven.
432.-445. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven.
Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.)
Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.)
Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.)
First sentence, rejected as not proven; second sentence, conclusion of law.
Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated.
457.-465. Accepted and incorporated to the extent not subordinate or unnecessary.
466.-470. Rejected as not proven without WQBEL studies.
471. Last sentence, accepted and incorporated; rest, rejected as not proven without WQBEL studies.
472. Rejected as not proven. See 310., above.
473.-475. Accepted but subordinate and unnecessary.
476. Rejected as not proven.
477.-478. Accepted but subordinate and unnecessary.
Rejected as not proven (that the discharges are.)
As to (d), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven without WQBEL studies.
Accepted but subordinate and unnecessary.
Rejected as not proven and as conclusion of law. 484.-485. Rejected as not proven.
Accepted but subordinate and unnecessary.
Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.)
Ultimate and penultimate sentences, rejected as not proven. The rest is accepted (although the fourth sentence is not complete) and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated.
First sentence, accepted and incorporated; rest, rejected as not proven.
491.-493. Accepted and incorporated to the extent not subordinate or unnecessary.
494. Accepted and incorporated to the extent not subordinate or unnecessary.
495. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, rejected as not proven.
496.-499. Accepted and incorporated to the extent not subordinate or unnecessary.
500. Last sentence, rejected as not proven; rest, accepted and incorporated to the extent not subordinate or unnecessary.
501. Accepted but largely subordinate and unnecessary. (Also, Saddlebrook was permitted under different rules; now, the special conditions can only be established after WQBEL studies.)
502.-504. Accepted and incorporated to the extent not subordinate or unnecessary. (However, it is understood that the constant head cell approach proved acceptable for purposes of estimating hydraulic capacity of the site but that it still did not accurately portray what would happen in the ditches and adjacent wetlands.)
505.-509. Accepted and incorporated to the extent not subordinate or unnecessary.
510. Rejected as not proven that the criticism was immaterial. See 502.- 504., above.
511. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary.
512.-524. Accepted and incorporated to the extent not subordinate or unnecessary.
525. Rejected as not proven that it would without fracture trace analysis and, if then indicated, the GPR. (Accepted that it might.)
526. Rejected as not proven that he was directed to "speak in favor of the County's permit application."
527. Accepted and incorporated to the extent not subordinate or unnecessary.
528. Except that 500 feet is a minimum setback distance, accepted and incorporated to the extent not subordinate or unnecessary.
529.-530. Accepted and incorporated to the extent not subordinate or unnecessary.
531. Rejected as not proven without fracture trace analysis and, if then indicated, the GPR. See 525., above.
532.-534. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law.
535. Accepted but subordinate and unnecessary.
536.-537. Rejected as not proven without WQBEL study.
538.-543. Accepted and incorporated to the extent not subordinate or unnecessary.
544. Rejected as not proven. (Rather, the County stated that it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a) and that it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit).)
545.-546. Rejected as not proven. Also, moot, subordinate and unnecessary.
547.-552. Accepted and incorporated to the extent not subordinate or unnecessary.
553.-557. Accepted but moot and unnecessary.
Rejected as not proven. Also, moot and unnecessary.
Accepted but moot and unnecessary.
Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary.
Accepted but moot and unnecessary.
Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary.
563.-566. Accepted but moot, subordinate and unnecessary.
567. Subordinate to facts not proven.
568. First sentence, rejected as not proven. Also, rejected as not proven that the Ryals Road sinkhole was "small." Otherwise, accepted. All moot and unnecessary.
569. Rejected as subordinate to facts not proven.
570. Last sentence, rejected as not proven. Otherwise, accepted. All moot, subordinate and unnecessary.
571.-573. Accepted but moot, subordinate and unnecessary.
Last sentence and word "stable," rejected as not proven. (He stated that the clay was "competent" and that the GPR could detect sinkholes down to 20 feet, but he did not comment specifically on the significance of the down- warping across the site and in the southeast corner.) Otherwise, accepted. All moot, subordinate and unnecessary.
Accepted but moot, subordinate and unnecessary.
Rejected as not proven that it is "unknown." The evidence is not clear, but Richtar thought the sinkholes at Oaks Royal opened after construction. Otherwise, accepted but moot, subordinate and unnecessary.
Accepted. Subordinate, in part to facts not proven and in part to facts supported by the greater weight of the evidence. Moot, subordinate and unnecessary.
Except for characterization of sinkhole as being "small," accepted but moot, subordinate and unnecessary.
Last sentence, rejected as not proven. (It is not a substitute for further investigation into the cause of the down-warping across the site and in the southeast corner.) Otherwise, accepted but moot, subordinate and unnecessary.
Rejected as not proven.
581.-582. First sentence, accepted but subordinate and unnecessary.
Second sentence, rejected as not proven and conclusion of law.
583. Second sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
584. First and last sentences, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary.
585. Accepted and incorporated to the extent not subordinate or unnecessary.
586. Accepted (assuming no new capacity) and incorporated to the extent not subordinate or unnecessary.
587.-588. Rejected as not proven. (It assumes no new capacity.) 589.-590. Accepted and incorporated to the extent not subordinate or
unnecessary.
591. Rejected as not proven.
592.-593. Accepted and incorporated to the extent not subordinate or unnecessary.
594. Rejected as not proven.
595. Accepted but moot, subordinate and unnecessary.
596. Third sentence, not proven. Rest, accepted but moot, subordinate and unnecessary.
597.-599. Accepted but moot, subordinate and unnecessary.
600. Accepted (assuming no new capacity) but moot, subordinate and unnecessary.
601. Rejected as not proven. Also, moot, subordinate and unnecessary. 602. Accepted and incorporated to the extent not subordinate or
unnecessary.
603.-604. Rejected as not proven.
Rejected as not proven that he is "one of the most vocal opponents." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that Rhodes contacted Hughes or that it was Rhodes's primary purpose to suggest Mortensen's discharge. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but subordinate and unnecessary.
Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven that Rhodes suggested Mortensen was incompetent. (Mortensen alleges he made "comments and insinuations" that "basically suggested that MEI was incompetent.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
610.-620. Accepted and incorporated to the extent not subordinate or unnecessary.
621. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
622. Rejected as not proven that Rhodes and Richtar were attempting to have the County "fire" Mortensen. Also, rejected as not proven that the "Department" will not be "truly impartial." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation.
623. Rejected as not proven. Also, subordinate and unnecessary. (The issue is whether they should be granted, not whether the reviewers should have recommended that they be granted.)
Respondent's Proposed Findings of Fact.
The Department's proposed findings of fact are numbered separately by facility:
Oakley Grove
Accepted and incorporated.
"Rimmed" rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated.
3.-8. Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but subordinate and unnecessary. (No "wastewater" would discharge from the ditch system.)
Rejected as contrary to the greater weight of the evidence and facts found that this was "revealed" by staff inspections. (Under certain conditions, and at certain application rates, it was expected.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted. Subordinate to facts found.
Rejected as contrary to the greater weight of the evidence and facts found. At the time of some if not all of the Department inspections, water was being diverted from some of the main stormwater collection ditches.
13.-18. Generally accepted and incorporated to the extent not subordinate or unnecessary.
19. "Wastewater effluent ponds" is inaccurate description. Otherwise, accepted and incorporated.
20.-24. Accepted and incorporated to the extent not conclusion of law.
25. Rejected as contrary to the greater weight of the evidence and facts found, and as conclusion of law, that it is "typical." (The proposed finding seems to be describing a Level II WQBEL study.)
26.-29. Accepted and incorporated to the extent not conclusion of law. (29. again seems to refer to a Level II WQBEL study.)
30. Accepted and incorporated to the extent not subordinate or unnecessary.
31.-36. Accepted. Largely subordinate to facts found.
Accepted and incorporated to the extent not subordinate or unnecessary.
Conclusion of law.
Accepted and incorporated. 40.-42. Conclusion of law.
Accepted and incorporated.
If "different nitrogen" means other than inorganic, accepted but subordinate and unnecessary.
Rejected as unclear what "distinguishes the type and amount of nitrogen" and what "numerous conditions" means.
Accepted and incorporated to the extent not subordinate or unnecessary.
47.-49. Accepted and incorporated to the extent not conclusion of law.
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not conclusion of law. 52.-55. Accepted and incorporated to the extent not subordinate or
unnecessary.
56. Accepted and incorporated to the extent not conclusion of law.
57.-58. Accepted and incorporated to the extent not conclusion of law.
Rejected as conclusion of law and as not proven what is "typical."
Accepted and subordinate to facts found.
61.-62. Accepted and incorporated to the extent not conclusion of law. 63.-82. Accepted and incorporated to the extent not subordinate or
unnecessary or conclusion of law.
83.-102. Accepted and incorporated to the extent not subordinate or unnecessary.
103. Rejected as not clear from the evidence whether reclaimed water was being applied on those dates. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
104.-106. Accepted and incorporated to the extent not subordinate or unnecessary.
107.-110. Accepted but subordinate and unnecessary. (These violations were temporary aberrations in otherwise proper operation of the facility. They were corrected and do not bear significantly on the question whether the County has given reasonable assurances.)
Last sentence, rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but subordinate and unnecessary. (The manual was maintained at a different location.)
Moon Lake Road
1.-13. Accepted and incorporated to the extent not subordinate or unnecessary.
14. One was proposed in evidence presented at the hearing but not in the application.
15.-19. Accepted and incorporated to the extent not subordinate or unnecessary.
20.-24. Accepted and incorporated to the extent not conclusion of law. 25.-26. Conclusion of law.
Accepted and incorporated to the extent not subordinate or unnecessary.
"Any" is rejected as contrary to the greater weight of the evidence.
Accepted and incorporated.
30.-32. Accepted. Subordinate to facts found.
Accepted and incorporated to the extent not conclusion of law.
First sentence, unclear; second sentence, accepted but subordinate and unnecessary.
Accepted. Subordinate to facts found.
36.-38. Accepted and incorporated to the extent not conclusion of law.
"Effluent" rejected to the extent that it infers something other than "reclaimed water." Rejected as to Deer Park WWTP; accepted as to the others.
Accepted and incorporated.
41.-43. Accepted and incorporated to the extent not subordinate or unnecessary.
44.-49. Accepted and incorporated to the extent not subordinate or unnecessary.
50.-52. Rejected as contrary to the greater weight of the evidence and facts found that the rainfall/evapotranspiration differences are great enough to have a significant impact on site capacity. The Tampa Airport data was the best to use at the time of the application. Other, closer data became available later and were considered as part of the County's rebuttal case.
53. Rejected as contrary to the greater weight of the evidence and facts found that the design of the model (constant head cells, boundaries, and single- layer) has a impact on site's hydraulic capacity. (It is understood that the significance of the design of the model is that it does not show flow into the ditches and adjacent wetlands or the relationship between surficial and Floridan aquifers.)
54.-55. Accepted and incorporated to the extent not subordinate or unnecessary.
56. Rejected as contrary to the greater weight of the evidence and facts found.
57.-58. Accepted and incorporated to the extent not subordinate or unnecessary. See 53., above.
Rejected as contrary to the greater weight of the evidence and facts found.
Accepted but subordinate and unnecessary.
61.-63. Rejected as contrary to the greater weight of the evidence and facts found.
64.-65. Accepted but subordinate and unnecessary.
66. Rejected as contrary to the greater weight of the evidence and facts found. See 50.-52., above. Limiting storage needs to the .215 MGD design sprayfield capacity only, there is no real question as to the needed storage capacity. Neither differences in the rainfall/evapotranspiration data nor differences in the source of the reclaimed water would make storage capacity deficient.
Ryals Road
1.-10. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as contrary to facts found and to the greater weight of the evidence that it was "effectively withdrawn." Otherwise, accepted and incorporated.
Rejected as not supported by the evidence that a $400 fee was paid on July 12, 1991. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.
13.-14. Accepted and incorporated to the extent not subordinate or unnecessary.
15.-26. Accepted but moot, subordinate and unnecessary.
27. Rejected as contrary to the greater weight of the evidence. Also, moot, subordinate and unnecessary.
28.-33. Accepted but moot, subordinate and unnecessary.
34. Rejected as not supported by the evidence that the residential density is "high". Otherwise, accepted but moot, subordinate and unnecessary.
COPIES FURNISHED:
Edward P. de la Parte, Jr., Esquire David M. Caldevilla, Esquire
de la Parte, Gilbert & Bales, P.A.
P.O. Box 2350
Tampa, Florida 33601-2350
Douglas H. MacLaughlin, Esquire Francine M. Ffolkes, Esquire Keith C. Hetrick, Esquire Assistant General Counsel
Department of Environmental Regulation 2600 Blairstone Road
Tallahassee, Florida 32399-2400
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Kenneth Plante, Esquire General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the Department of Environmental Protection written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Environmental Protection concerning its rules on the deadline for filing exceptions to this Recommended Order.
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
PASCO COUNTY BOARD OF COUNTY COMMISSIONERS,
Petitioner,
vs. OGC FILE NO. 92-0311
DOAH FILE NO. 92-1604
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/ PASCO COUNTY UTILITY DEPARTMENT,
Petitioner,
vs. OGC FILE NO. 91-1529
DOAH FILE NO. 92-1653
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/ PASCO COUNTY BOARD OF COUNTY COMMISSIONERS,
Petitioner,
vs. OGC FILE NO. 92-1786
DOAH FILE NO. 92-1654
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/
FINAL ORDER
On October 31, 1994, Hearing Officer J. Lawrence Johnston of the Division of Administrative Hearings submitted his Recommended Order in the above- captioned matter. A copy of the Recommended Order is attached Exhibit A.
On November 15, 1994, Petitioner Pasco County Board of County Commissioners (the County) l/ filed timely exceptions to the Recommended Order and a request for oral argument. On November 29, 1994, counsel for the Department filed a timely response to the County's exceptions. The matter is now before me as Secretary of the Department for final agency action.
BACKGROUND
The procedural history of this consolidated matter fills no less than eight pages of the Recommended Order (Exhibit A, pp. 3-10), and no useful purpose would be served by its complete recapitulation in this Final Order. This matter turns on the Department's denial of County permit applications for three separate rapid-rate infiltration domestic waste water disposal facilities, commonly known as percolation ponds or "perc ponds." The first application (No. DO51-194674) sought permission to operate the County's existing Wesley Chapel waste water treatment plant (WWTP) at .750 million gallons per day (MGD) of treatment capacity and to operate the County's existing Oakley Grove percolation pond system at .600 MGD of disposal capacity. The second application (No. DO51- 199516) sought to reactivate the County's disused Ryals Road percolation ponds at a disposal capacity of .1075 MGD. The third application (No. DC5I-189086) sought authorization for the construction of a proposed Moon Lake Road WWTP of
.800 MGD treatment capacity, a sprayfield of .215 MGD disposal capacity, and percolation ponds of .185 MGD disposal capacity.
All of the County's applications were denied in March of 1992, and timely petitions for formal administrative hearing were filed as to each denial. Each was docketed separately at DOAH, but all were consolidated for the purpose of hearing on April 7, 1992. Originally scheduled to be heard in July of 1992, the matter was placed in abeyance before DOAH until June of 1993, when the County requested that a final hearing be held; this was rescheduled for November 1993, and further continued to February of 1994, when the final hearing actually occurred.
On January 3, 1994, the County filed a rule challenge petition which was related to the consolidated permitting matter. This challenge was docketed as DOAH Case No. 94-0001RX and heard contemporaneously with the consolidated matter at bar. The County challenged F.A.C. Rules 17-610.517(2) and 176l0.522 2/ as well as what the County alleged was an unpromulgated rule contained in Department policy memoranda issued in 1989 and 1990. By final order dated October 31, 1994, Hearing Officer Johnston dismissed the County's rule challenge petition, upholding the challenged rules and finding no unpromulgated rule different from the challenged Rule 17-610.517(2).
EXCEPTIONS
The County submitted thirty-three exceptions to the Recommended Order. Ten are directed to conclusions of law and recommendations made by the hearing officer, while the balance assail findings of fact contained in the Recommended Order. The County's exceptions have been carefully considered in light of the voluminous record in this matter and applicable principles of law. One of the County's exceptions (No. 6) correctly identifies the existence of a typographical error as to the date of expiration of Permit DO51-142683 on page
50 of the Recommended Order. See Ex. A, 166. In every other respect, however, the County's exceptions are wholly without merit.
Turning first to the County's exceptions to findings of fact, it is axiomatic that the Administrative Procedure Act (APA) does not grant the
Department a license freely to overturn factual findings duly made by a DOAH hearing officer in the course of a formal administrative proceeding under Section 120.57(1), Florida Statutes. On the contrary, Section 120.57(1)(b)10 closely circumscribes the Department's ability to reject or modify such findings. It is settled that the Department may not reject or modify findings of fact without first determining from a complete review of the record, and describing in its order, "that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law." l20.57(1)(b)10, Fla. Stat. (Supp. 1994).
In formal proceedings under the APA, it is the hearing officer's duty and prerogative to consider all of the evidence presented, resolve conflicts between testimony, judge the credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon competent substantial evidence. Goss v. Dist. School Bd. of St. Johns County, 601 So.2d 1232 (Fla. 5th DCA 1992). Reviewing agencies may not reject or modify such findings unless they can determine that there is no competent substantial evidence from which challenged findings could be inferred. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). See also Freeze
v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Fla. Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). As stated in one of the earliest APA decisions to construe the fact-finding role of the hearing officer in a 120.57 case: "[F]indings of fact reported by a hearing officer to the reviewing agency become binding on the agency in the absence of an explicit determination that the findings were not based upon competent substantial evidence or that they did not comport with the essential requirements of law." Pasco County School Bd. v. Fla. Public Employees Relations Comm., 353 So.2d 108,
115 (Fla. 1st DCA 1978).
Nor can the strictures of Section 120.57(1)(b)10 be evaded by the formulation of findings "supplemental" to those contained in a recommended order, thereby supporting new conclusions of law different than those called for by the effect of the findings made by the hearing officer. Bekiempis v. Dept. of Professional Regulation, 421 So.2d 693 (Fla. 2d DCA 1982); accord, Wash and Dry Vending Co. v. Dept. of Business Regulation, 429 So.2d 790 (Fla. 3d DCA 1983). An agency may not substitute its judgment of the evidence for that of the hearing officer "by taking a different view of, or placing greater weight on the same evidence." 429 So.2d at 792. See also Dept. of Prof. Regulation v.
Wagner, 405 So.2d 471 (Fla. 1st DCA 1981).
Judged against these principles, the twenty-three exceptions directed by the County toward specific findings of fact contained in the Recommended Order cannot be sustained. All of the challenged findings of fact are supported by competent substantial evidence in the record, considered as a whole. These findings of fact are binding on the Department and the County alike. County Exception 5 and County Exceptions 8 through 29, inclusive, are REJECTED.
Turning next to the County's ten exceptions to various conclusions of law contained in the Recommended Order, Exceptions 1 through 4 object generally to the application of Department Rule 17-610.517(2) to the County's Wesley Chapel/Oakley Groves and Moon Lake permit applications, on the supposed basis that the rule was proven invalid in the companion rule challenge case. The County also claims that the Hearing Officer erred in supposedly applying the alleged non-rule policy on rapid-rate land application systems that was impugned as unlawful by the County in the rule challenge case.
County Exception 6, as noted above, accurately points out an erroneous substitution of 1989 for 1994 as the date of the Oaks Royal/Ryals Road permit expiration in paragraph 166 of the Recommended Order: an obvious scrivener's error of no substantive import. See Exhibit A, p. 50; cf. Finding of Fact 26, Ex. A, p. 16. County Exception 7 also objects to the Hearing Officer's characterization of the County's Ryals Road permit claims as "moot" in the same paragraph 166.
County Exception 30 excepts to the Hearing Officer's conclusion, Ex. A, 187, p. 57, that the County's failure to perform a fracture trace or ground penetrating radar ("GPR") analysis constitutes a lack of reasonable assurances by the County as to the suitability of the Moon Lake site for effluent disposal. County Exception 31 criticizes the Hearing Officer's failure to credit information submitted by the County in support of its permit applications as being equivalent to a Level I water quality-based effluent limitation (WQBEL) study of the water bodies that would receive discharges from the County perc ponds. Finally, Exceptions 32 and 33 except to the recommendations of the Recommended Order: that the County's permit applications be denied.
The crux of the County's exceptions is the County's desire that the existing and proposed perc pond facilities at issue in this matter be declared exempt from the application of Rule 17-610.517(2), F.A.C. This rule section, set forth in its entirety at page 52, paragraph 174 of Exhibit A, sets additional permitting standards to be met for rapid rate infiltration disposal sites where more than 50 percent of the reclaimed waste water is collected in surface perimeter ditches after application. To avoid the possibility of a damaging direct discharge of sewage effluent to downstream water bodies, surface discharge from perc pond site drainage ditches is expressly required to meet surface water permitting standards in order to meet anti-degradation requirements. Compliance with these surface water standards must be shown by the conduct, if necessary, of WQBEL studies needed to establish site-specific discharge limits for the protection of the receiving waters.
The County does not contest that the perimeter ditches in place at the Oakley Groves site and projected for the Moon Lake site will collect substantial amounts of reclaimed water after application. Yet the County seeks to utilize a semantical defense to this situation, claiming that the "reclaimed water" that will be intercepted in what the County characterizes as "relief drainage ditches" becomes "ground water" at the instant it contacts the surficial aquifer below the perc pond. Therefore, in the County's view, any surface water discharge from its perc pond ditch systems is indistinguishable as a matter of law from an artesian spring, at least as regards compliance with permitting criteria.
This legalistic argument was properly rejected by the Hearing Officer. The Department sees no error in the Recommended Order's conclusions of law on the applicability of Rule 17-610.517(2), F.A.C., in this matter. Exceptions 1-4 are REJECTED.
Turning to County Exceptions 6 and 7, these hinge on the County's view that Permit DO51-142683 did not expire on August 5, 1994. This view was properly rejected by the Hearing Officer in Finding of Fact paragraph 26. And, as noted at paragraph 167 of the Recommended Order (Ex. A, pp. 50-51), the County is currently pursuing another administrative case dealing with whether Permit DO51- 142683 should be renewed by the Department. The Department finds no error in the Hearing Officer's conclusions as to the mootness of the Oaks Royal/Ryals Road claims in the context of this proceeding.
Next, County Exception 30 complains that the Hearing Officer erred by finding that the County must perform a fracture trace or GPR analysis for the Moon Lake site. This exception is devoid of merit. There is no dispute that evidence submitted by the County shows that the Moon Lake site has the potential for karst--that is, sinkhole--activity. As the Hearing Officer found, karst terrain is typical in Pasco County. Ex. A, 95, p. 34. It would be irresponsible for the Department not to require a rigorous technical analysis of new percolation pond projects in karst areas, given the potential impact to potable water supplies of a direct discharge of effluent to the Floridan aquifer. Exception 30 is REJECTED.
County Exception 31 asserts that the analysis by County witnesses of the water quality impacts of expected off-site discharges from the perc pond sites constituted information equivalent to a Level I WQBEL. See Rule 62-650.400(2),
F.A.C. This contention was properly rejected by the Hearing Off icer as a matter of fact and as a matter of law. No evidence was supplied that water quality data associated with the water bodies to be affected by the expected discharges from the pond systems was reviewed by these witnesses. Moreover, the County has not actually sought to permit the sites at issue here as surface water discharges and has not submitted a formal request for its analysis to be considered as a potential WQBEL Study. Exception 31 is REJECTED
Finally, Exceptions 32 and 33 brand the recommendations of the Recommended Order as "erroneous." The Department does not agree. The County's Wesley Chapel WWTP certainly might be capable of lawful and environmentally sound operation at a higher treatment capacity. The absence, however, of demonstrated disposal or reuse capacity for the product of the Wesley Chapel plant at Oakley Groves' ponds or at some alternate location prevents the issuance of an operation permit for Wesley Chapel in the full capacity sought by the County, as the Hearing Officer's recommendation correctly stated. The County remains able to test load the Oakley Grove ponds to determine what actual disposal capacity might be available there via rapid rate land application.
The Department notes with specific approval the following statement from the Recommended Order:
[N]o determination can be made that either Oakley Grove or Moon Lake Road are not permittable at design capacity. It is possible that fracture trace analysis and, if indicated, ground penetrating radar (GPR) will confirm the suitability of the Moon Lake Road site; and it is possible that load tests and WQBEL studies, as required, will support the issuance of a surface water discharge permit for both sites.
Ex. A, 193, p. 59. Contrary to the Hearing Officer's recommendation, however, the Department cannot retain jurisdiction over the Moon Lake and Oakley Grove applications which were placed at issue here, because Section 120.60(2) and Section 403.0876, Florida Statutes, both command us to take final action as to the applications. The most that can be done under the circumstances presented here is for the denials of these applications, as correctly recommended by the hearing Officer, to be entered without prejudice to the resubmission of the applications after further geotechnical and other analysis rather than "subject
to reconsideration" as specifically recommended. With this caveat, the Department approves the recommendations of the Hearing Officer. Exceptions 32 and 33 are REJECTED.
ORDER
Accordingly, it is ORDERED:
Pursuant to Section 120.57(1)(b)10, Florida Statutes, Exhibit A is APPROVED and ADOPTED by the Department, except as modified herein.
Permit Application Number DO51-189086 is DENIED without prejudice to the resubmission by the County of a properly substantiated application in accordance with this Order.
Permit Application Number DO51-194674 is GRANTED IN PART. The Southwest District Office is directed forthwith to issue the County a permit to operate its Oakley Grove percolation ponds at the rate of 0.075 MGD. In all other respects, the application is DENIED without prejudice to the resubmission by the County of a properly substantiated application in accordance with this Order.
Permit Application Number DO51-199516 is DENIED.
NOTICE OF RIGHT TO JUDICIAL REVIEW
Any party to this proceeding has the right to seek judicial review of this Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department of Environmental Protection, 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 Final Order is filed with the Clerk of the Department.
DONE and ORDERED this 15th day of December, 1994, at Tallahassee.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
3900 Commonwealth Blvd.
Tallahassee, Florida 32399-3000
(904)488-4805
ENDNOTES
1/ The Petitioner in one of the consolidated cases is "Pasco County Utility Department" but the real party in interest is the County.
2/ Chapter 17-312, Florida Administrative Code, was transferred intact to a newly created Chapter 62-312, Florida Administrative Code, effective August 10, 1994. This chapter will continue to be referred to with its former Title 17,
Florida Administrative Code, designation in the interest of consistency with the Recommended Order.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to:
Edward P. de la Parte, Jr., Esquire David M. Caldeville, Esquire
Tampa City Center Suite 2300
Post Office Box 2350 Tampa, Florida 33601-2350
and by hand delivery to:
J. Lawrence Johnston Ann Cole, Clerk
Hearing Officer Division of Administrative Division of Administrative Hearings
Hearings The DeSoto Bldg
The DeSoto Bldg 1230 Apalachee Pkwy
1230 Apalachee Parkway Tallahassee Florida 32399-1550
Tallahassee Florida 32399-1550
Francine Ffolkes, Esquire
Department of Environmental Protection 2600 Blair Stone Rd
Tallahassee Florida 32399-2400
on this 15th day of December, 1994.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
RICHARD T. DONELAN
Assistant General Counsel 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone: (904) 488-9314
| Issue Date | Proceedings |
|---|---|
| Nov. 08, 1995 | Case Files sent to Agency General Counsel`s Office. |
| Dec. 16, 1994 | Final Order filed. |
| Nov. 14, 1994 | Letter to JLJ from D. Caldevilla (RE: transmittal of exhibits and transcripts to DEP) filed. |
| Oct. 31, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 0208-10/94 & 03/07/94. |
| Aug. 31, 1994 | Pasco County's Notice of Supplemental Authority filed. |
| Aug. 02, 1994 | Pasco's County Proposed Findings of Fact; Pasco County's Memorandum of Law In Support of Proposed Findings of Fact; Computer Disk filed. |
| Aug. 01, 1994 | Department of Environmental Protection's Memorandum of Law and Closing Argument; Department of Environmental Protection's Proposed Recommended Order filed. |
| Jul. 29, 1994 | Order Enlarging Page Limitation for Proposed Recommended Orders sent out. |
| Jul. 28, 1994 | Second Joint Motion to Exceed Page Limitation filed. |
| Jul. 12, 1994 | Order Enlarging Time for Proposed Recommended Orders sent out. (time for filing proposed recommended order is enlarged to 7/31/94) |
| Jul. 07, 1994 | Third Joint Motion for Extension of Time filed. |
| Jun. 29, 1994 | Order Enlarging Time for Proposed Final Orders sent out. (motion granted) |
| Jun. 29, 1994 | (Petitioner) Response to Initial Order and Motion to Abate filed. |
| Jun. 14, 1994 | (Respondent) Second Joint Motion for Time Extension filed. |
| May 03, 1994 | Order Enlarging Time and Page Limitation for Proposed Recommended Orders sent out. |
| Apr. 28, 1994 | Joint Waiver for Time Extension and To Waiver Page Limitation filed. |
| Apr. 19, 1994 | Letter to JLJ from D. Caldevilla (Re: confirmation of filing final hearing transcript) filed. |
| Apr. 05, 1994 | Notice of Filing Transcript of Final Hearing; Transcript (vols 1-4) filed. |
| Mar. 07, 1994 | CASE STATUS: Hearing Held. |
| Mar. 01, 1994 | (DER) Certificate of Service of Witness Signature Pages and Errata Sheets filed. |
| Mar. 01, 1994 | Pasco County's Notice of Filing Deposition Transcripts filed. |
| Mar. 01, 1994 | Depositions of: Stephen G. Thompson (original & copy) w/Pasco Exhibits 1-20, David York w/Exhibits 1-15, David B. Rhodes w/Exhibits 1-22, Joe Amato w/Exhibits 1-22, Judith A. Richtar w/Pasco Exhibits 1-26, Peter H. Burghardt w/Pasco Exhibits 1- |
| Feb. 21, 1994 | Order Continuing Final Hearing sent out. (hearing rescheduled for 3/7/94; 9:30am; Tallahassee) |
| Feb. 10, 1994 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| Feb. 08, 1994 | Pasco County's Notice of Taking Deposition Duces Tecum w/attached Subpoenas; Motion for Protective Order; Pasco County's Motion to Reopen Discovery for Limited Depositions on Newly Disclosed Opinions filed. |
| Feb. 04, 1994 | (Respondent) Notice of Filing Original Returns of Service for Deposition Subpoenas Duces Tecum filed. |
| Feb. 02, 1994 | Order Denying Motions sent out. |
| Feb. 02, 1994 | Department's Response to Pasco County's Motion in Limine filed. |
| Feb. 02, 1994 | Pasco County's Notice of Telephonic Hearing; Pasco County's Third Motion for Sanctions filed. |
| Feb. 01, 1994 | Response to Pasco County's Motion to Strike Department's Notice of Modification of Agency Position filed. |
| Jan. 31, 1994 | Respondent Department of Environmental Protection`s Prehearing Statement w/(TAGGED) Exhibits 14, 17 & 18 filed. |
| Jan. 31, 1994 | State of Florida`s Motion in Limine and Motion to Strike Pre-Filed Expert Testimony Concerning DOAH Case No. 92-1604 filed. |
| Jan. 28, 1994 | Pasco County`s Notice of Filing Exhibit List w/Pasco County`s Exhibit List filed. |
| Jan. 27, 1994 | Notice of Filing Responde Department`s Prefiled Expert Testimony of Joseph A. Amato, P.E. w/Prefiled Expert Testimony of Joseph A. Amato. P. E.; Notice of Filing Demonstrative Exhibits to Respondent Department`s Prefiled Expert Testimony of Joseph A. A |
| Jan. 27, 1994 | Notice of Filing Respondent Department's Prefiled Expert Testimony ofEdward G. Snipes, P.E. w/Prefiled Expert Testimony of Edward G. Snipes, Jr., P. E.; Notice of Filing Respondent Department's Prefiled Expert Testimony of David B . Rhodes w/Prefiled Ex |
| Jan. 27, 1994 | Notice of Filing Respondent Department`s Pre filed Expert Testimony ofPasquale Fricano w/Prefiled Expert Testimony of Pat Fricano; Notice of Filing Respondent Department`s Prefiled Expert Testimony of Judith Richtar, P.G. w/Prefile d Testimony of Expert |
| Jan. 26, 1994 | Order Consolidating Cases and Continuing Final Hearing sent out. (Consolidated cases are: 92-1604, 92-1653, 92-1654, 94-0001RX; Hearing set for 2/8-11/94; Tampa) |
| Jan. 26, 1994 | Order Granting Deadline Extension sent out. |
| Jan. 26, 1994 | Pasco County`s Prehearing Statement w/Exhibits A-C; Pasco County`s Notice of Filing Prepared Direct Testimony and Exhibits; Prepared Direct Testimonies of Michael D. Micheal; Richard A. Mortensen; Layne C. Cady; Douglas S. Bramlett; Harvey H. H |
| Jan. 24, 1994 | Request for Oral Argument on Pasco County's Motion to Strike Department's Notice of Modification of Agency Position; Pasco County's Motion to Strike Department's Notice of Modification of Agency Position w/Exhibits A-H filed. |
| Jan. 24, 1994 | Pasco County's Motion for Official Recognition. |
| Jan. 24, 1994 | Pasco County's Notice of Filing Answers to Interrogatories filed. |
| Jan. 21, 1994 | Department 's Uncontested Motion to Extend Deadline for Filing Prefiled expert Testimony and Prehearing Stipulation filed. |
| Jan. 20, 1994 | Notice and Certificate of Service of Department`s Answers to Pasco County`s Second Set of Interrogatories to Department filed. |
| Jan. 20, 1994 | Pasco County's Motion in Limine filed. |
| Jan. 20, 1994 | (Respondent) Notice of Modification of Agency Position filed. |
| Jan. 19, 1994 | (ltr form) Change of Venue filed. (From David M. Caldevilla) |
| Jan. 18, 1994 | Pasco County's Notice of Filing Returns of Service; (3) Subpoena Duces Tecum w/Affidavit of Service filed. |
| Jan. 18, 1994 | Joint Motion to Consolidate and Reschedule filed. |
| Jan. 14, 1994 | Pasco County`s Notice of Filing Answers to Its Requests for Admissions With Interrogatories to Petitioner w/DEP`S Response to Pasco`s Second Request for Admissions With Interrogatories to DEP filed. |
| Jan. 13, 1994 | Pasco County`s Uncontested Motion to Extend Deadline for Pre-filed Testimony and Pre-Hearing Stipulation filed. |
| Jan. 10, 1994 | Letter to JLJ from David M. Caldevilla (re: hearing dates) filed. |
| Jan. 07, 1994 | (12) Pasco County's Notice of Filing Returns of Service w/Subpoena Duces Tecum filed. |
| Jan. 06, 1994 | Pasco County`s Notice of Canceling Deposition Duces Tecum of Eric Livingston; Pasco County`s Cross-Notice of Taking Deposition Pursuant to Florida Rule of Civil Procedure 1.310(b)(6) w/Exhibit-A; Pasco County`s Notice of Taking Depositions Duces Tecum |
| Jan. 05, 1994 | (Respondent) Notice and Certificate of Service of Department`s Response to Pasco County`s Second Requests for Admissions to DEP With Interrogatories; Amended Notice of Taking Deposition Duces Tecum; Uncontested Motion to Extend Discovery Deadline filed. |
| Jan. 03, 1994 | Department's Notice of Cancelling Depositions Duces Tecum of Candia Mulhern and Paul Pilney filed. |
| Jan. 03, 1994 | (Petitioner) Notice of Related Cases and Motion to Consolidate filed. |
| Dec. 30, 1993 | Pasco County's Amended Notice of Taking Deposition Duces Tecum of Judy Richtar w/Exhibit-A filed. |
| Dec. 30, 1993 | Pasco County's Notice of Taking Telephonic Deposition Pursuant to Florida Rule of Civil Procedure 1.310(b)(6); Pasco County's Notice of Taking Telephonic Deposition Duces Tecum of Eric Livingston; Pasco County's Notice of Taking Deposition Duces Tecum o |
| Dec. 27, 1993 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Dec. 27, 1993 | Pasco County's Notice of Taking Depositions of Pat Fricano and Joe May filed. |
| Dec. 15, 1993 | Pasco County's Notice of Cancelling Deposition DT of Jay Thabaraj filed. |
| Dec. 15, 1993 | Order Denying Pasco County's Second Motio for Sanctions sent out. |
| Dec. 15, 1993 | Department's Notice of Cancelling Deposition DT of William Munz filed. |
| Dec. 09, 1993 | Pasco County's Response to Department's Request for Entry Upon Land and Request for Production filed. |
| Dec. 08, 1993 | (10) Notice of Taking Deposition Duces Tecum filed. (From Francine M. Folkes) |
| Dec. 07, 1993 | Department's Response to Pasco County's Second Motion for Sanctions w/Exhibits 1-6 filed. |
| Dec. 06, 1993 | (Respondent) Notice of Filing Responses to Pasco County`s Initial Request for Admissions to DER; Request for Entry Upon Land for Inspection and Other Purposes, and Request for Production of Documents and Things filed. |
| Dec. 06, 1993 | Pasco County's Notice of Taking Depositions Duces Tecum; Pasco County's Second Notice of Taking Depositions Duces Tecum filed. |
| Dec. 06, 1993 | (Respondent) Notice and Certificate of Service of Department`s Additional Answers to Pasco County`s First Interrogatories filed. |
| Dec. 02, 1993 | Pasco County`s Notice of Serving Second Set of Interrogatories to Department w/Pasco County`s Second Set of Interrogatories to Department; Notice of Serving Pasco`s Second Request for Admissions With Interrogatories to DEP w/Pasco`s Second Request for A |
| Dec. 02, 1993 | (Petitioner) Pasco County`s Second Motion for Sanctions filed. |
| Dec. 01, 1993 | Order Extending Deadlines sent out. |
| Nov. 30, 1993 | (Respondent) Uncontested Motion to Amend Prehearing Order and Extend Deadlines filed. |
| Nov. 29, 1993 | Department's Response to Pasco County's First Request for Production of Documents filed. |
| Nov. 23, 1993 | Order Denying Motion for Summary Recommended Order and Granting in Part Motion for Sanctions sent out. |
| Nov. 22, 1993 | (Respondent) Notice of Filing and Certificate of Service of Department's Supplemental Response to Pasco County's Initial Request for Admissions; Motion for Relief From Admissions and Response to Pasco County'sMotion for Sanctions w/Exhibits 1-10 filed. |
| Nov. 22, 1993 | Department`s Whose to Pasco County`s Motion for Summary Recommended Order and to Relinquish Jurisdiction; Notice and Certificate of Service of Department`s Answers to Pasco County`s First Set of Interrogatories to DER filed. |
| Nov. 22, 1993 | Copies of Case Law Cited by the Department w/cover ltr filed. |
| Nov. 15, 1993 | Pasco County's Amended Notice of Telephonic Hearing filed. |
| Nov. 02, 1993 | Pasco County's Notice of Telephonic Hearing filed. |
| Nov. 01, 1993 | Notice of Filing and Certificate of Service of Department `s Response to Pasco County`s Initial Request for Admissions With Interrogatories to DER filed. |
| Nov. 01, 1993 | Pasco County's Notice of Telephonic Hearing filed. |
| Oct. 29, 1993 | Pasco County's Request for Oral Argument filed. |
| Oct. 27, 1993 | Pasco County's Request for Oral Argument; Pasco County's Motion for Summary Recommended Order and to Relinquish Jurisdiction w/supporting attachments filed. |
| Oct. 26, 1993 | Notice and Certificate of Service of Department's Answers to Pasco County's First Set of Interrogatories to DER filed. |
| Oct. 25, 1993 | Pasco County's Motion for Sanctions w/Exhibits A-D filed. |
| Oct. 18, 1993 | Pasco County's Witness List filed. |
| Oct. 18, 1993 | Letter to KNA from David M. Caldevilla (re: confirmation on hearing scheduled for February 8-11. 1994) filed. |
| Oct. 11, 1993 | Department's Preliminary Witness List filed. |
| Oct. 05, 1993 | Order Granting Continuance and Amended Notice sent out. (hearing rescheduled for 2/8/94; 1:00pm; Tampa) |
| Oct. 04, 1993 | Order of Consolidation sent out. (Consolidated cases are: 92-1604, 92-1653, 92-1654) |
| Oct. 04, 1993 | Case No/s 92-1603, 92-1604, 92-1653, 92-1654, 92-1655: unconsolidated. |
| May 14, 1992 | Case Nos. 92-2488, 92-2489, 92-1603, 92-1604, 92-1653, 92-1654 and 92-1655: unconsolidated. |
| May 12, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-1603, 92-1604, 92-1653, 92-1654, 92-1655, 92-2488 and 92-2489) |
| May 12, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-2488 and 92-2489) |
| Apr. 07, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-1603, 92-1604, 92-1653, 92-1654 and 92-1655 |
| Mar. 31, 1992 | (Petitioner) Response to Initial Order filed. |
| Mar. 17, 1992 | Initial Order issued. |
| Mar. 10, 1992 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Notice of Permit Denial; Petition for Formal Administrative Proceedings and Referral to Division of Administrative Hearings filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 15, 1994 | Agency Final Order | |
| Oct. 31, 1994 | Recommended Order | Seepage from percolation ponds to perimeter ditches required surface water permit and WQBELS. Prior noncompliance relevant even without Notice Of Violation. No estoppel. No default. |
