STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NOEL K. DESMOND, )

)

Petitioner, )

vs. ) DOAH CASE NO. 94-6602

) OGC CASE NO. 94-3554 PIONEER FARMS (E. T. USHER), and )

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on March 3, 1995, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was the Offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Noel K. Desmond Pro se

Post Office Box 1771 Chiefland, Florida 32626-1771

For Respondent: Marty Smith, Esquire For Pioneer Farms: Post Office Box 3310

(E. T. Usher) Ocala, Florida 34478-3310

For The Department Thomas I. Mayton, Esquire

of Environmental Department of Environmental Protection Protection: Twin Towers Office Building

2600 Blair Stone Road, Mail Station 35 Tallahassee, Florida 32399-2400

STATEMENT OF ISSUES

Is Pioneer Farms (E. T. Usher) entitled to the issuance of a permit from the State of Florida, Department of Environmental Protection which would allow the construction of a 0.033MGD dairy waste management system which includes rotational grazing of the dairy herd and the application of spray effluent derived from a solids separation chamber and an anaerobic lagoon?

PRELIMINARY STATEMENT

The State of Florida, Department of Environmental Protection (DEP) issued a notice of intent to grant a permit to Pioneer Farms (E.T. Usher), hereinafter referred to as Pioneer. This would allow Pioneer to construct a dairy waste management system. Noel K. Desmond (Desmond) petitioned in opposition to the

grant of that permit. The case was forwarded to the Division of Administrative Hearings. A hearing Officer was assigned. The hearing was conducted on the aforementioned date.

At hearing Desmond presented exhibits to support his case and offered limited testimony to support their admission. Petitioner's exhibits 1, 2, 4, 6,

8-14, 16 and 17 were admitted. Petitioner's exhibits 3, 5, 15, 18 and 19 were denied admission.

Pioneer presented as witnesses Dr. Dale Bottcher, expert in agricultural engineering and dairy design and Mark Bardolph, expert in dairy design. Pioneer presented six exhibits referred to as Usher's 1-6, which were admitted.

DEP presented John J. Davis, expert in hydro-geology, and David Bolam, expert in environmental engineering as its witnesses, together with three exhibits which were admitted.

Official recognition was made of Chapter 62-340, Florida Administrative Code.

A hearing transcript was filed on March 30, 1995. Proposed recommended orders have been submitted by the parties. The fact finding suggested in those proposed recommended orders is discussed in an appendix to the recommended order.

Additional correspondence was received from the Petitioner. It is not clear whether that correspondence was served on the Respondents. Therefore, the Secretary of the Department of Environmental Protection and counsel to the Respondents are provided a copy of the correspondence with this recommended order.

FINDINGS OF FACT

1. Pioneer applied for necessary environmental permits to construct a

   0.033 MGD dairy waste management system in Levy County, Florida. Pioneer sought permission for this construction from DEP.

   
   

2. DEP has regulatory authority over the construction of Pioneer's proposed waste management system in accordance with Chapter 403, Florida Statutes and Chapter 62, Florida Administrative Code.

   
   

3. Desmond owns property in Levy County, Florida. His property is adjacent to the Pioneer property where the dairy waste management system would be established.

   
   

4. When Desmond received notice that DEP intended to grant a permit to Pioneer to construct the dairy waste management system, he petitioned in opposition to that grant.

   
   

5. Desmond asserts that the proposed waste management system is experimental in nature and will adversely affect surface and subsurface water quality, that use of spray irrigation is not appropriate for the area, that the property upon which the project would be located is prone to flooding and has flooded in the past, that the applicant has failed to delineate the landward extent of wetlands and surface waters, that the supporting engineering studies do not contain historical data on flood duration periods, that there is no record of plant species surveyed, that the property in question ponds during the

   rainy seasons and that the ponding lasts longer than seven days, that the property is saturated during the rainy season and the saturation is of a duration greater than 20 days, that the subsurface water level during the rainy season is less than 18 inches from the surface, that the percolation rate of the properties soils are equal to or greater than 20 inches per hour or 40 feet per

   24 hours, that the engineering report does not contain sufficient data for supporting adequate modeling of manure and nitrate transport, that the Floridan Aquifer is highly vulnerable to contaminants in the area of the project, and that pollution will certainly occur with the advent of the project, that facts indicate that ammonia and nitrate deposits will be washed through the soils before sufficient retardation and denitrification can occur, that the holding pond design fails to meet the 25-year, 24-hour storm event, that there are records of storms greater than the 25-year storm as frequent as 13 times in the last 94 years, that the piezometric head in the northwest portion of the property is unknown, and that as a consequence the subsurface directional water flow has not been determined.

   
   

6. Desmond failed to prove these facts. By contrast, Pioneer and DEP have proven that the necessary reasonable assurances have been presented to allow the construction project to be permitted subject to general and specific conditions set forth in the notice of intent to issue the permit.

   
   

7. The dairy waste management system is designed to accommodate a herd of 978 lactating cows on 374 acres of rotationally grazed pastures and 200 dry cows and 224 heifers pastured on a 124 acre effluent spray field and 112 acres of rotationally grazed pastures. The calves that are part of this herd will be grazed off-site. The waste management system consists of a concrete solids separation chamber; a 54,000 cubic foot anerrobic lagoon, and the 124-acre effluent spray field.

   
   

8. Effluent, by way of solids in the barn area where the separation chamber is found, are transported by gravity to a pond referred to as the anerobic lagoon. That effluent is then sprayed on certain pasture land.

   
   

9. While there are areas within the project site which are subject to ponding, the herd will not be allowed to access the ponded areas. The ponded areas are not sufficiently wide spread to compromise the project design.

   
   

10. Waste solids associated with the herd's grazing activities will be applied to a pine forest adjacent to the site.

    
    

11. The waste management system is designed to collect and treat wastewater that is generated at the milking barn and contaminated storm-water runoff that is processed through the solids separation chamber and that enter the lagoon.

    
    

12. The lagoon/pond is designed to respond to a storm event that is greater than the 25 year/24 hour storm event.

    
    

13. Well sites will be located on the property to monitor the effects of solid wastes from the herd grazing on pasture land and the effects of spray effluent on the pasture land as these sources influence groundwater quality, having in mind compliance with Chapter 62-522, Florida Administrative Code.

14. The engineering design is set forth in Usher Exhibit No. 2, the report in support of the permit application. Usher Exhibits Nos. 3 and 5, are responses to the DEP requests for additional information about the permit application.

    
    

15. Adequate information has been provided concerning the soils in the area, their structure and drainage potential. Emphasis has been placed on the excavation of the lagoon/pond and the existing soil structure in that area and any need to over-excavate and fill. Any necessary fill will be constituted of sand or limestone with sufficient compaction to meet design specifications for the lagoon/pond.

    
    

16. Appropriate attention has been paid to grade elevations of the primary structures associated with the project, the side slopes of embankments against the barn floor, concrete cattle lanes, solids separator and entrance ramp to the storage pond and the storage pond itself, as these engineering features respond to drainage issues.

    
    

17. Appropriate attention has been paid to hydro-geology of the region in which this project is located by specific information obtained through soil borings made at on-site monitoring wells as this information anticipates percolation rates.

    
    

18. Studies at the project site reveal that the information from potentiometric maps of the Floridan Aquifer are incorrect concerning the direction of groundwater flow. The more specific studies done by the applicant show that the flow is in a northeastern direction. In determining the direction of flow of groundwater, 13 wells were drilled.

    
    

19. While the concept in this project of using frequent and intensive grazing rotations in the pasture land, referred to as paddock areas, is a new concept in Florida, the expected performance by the herd, the pasture land and the overall waste management system in this project are based upon reasonable assumptions and do not lead to the results that violate the DEP statutes and rules for the protection of surface water and groundwater.

    
    

20. This system is one in which the lactating cows within the herd would spend 85 percent of their time in the paddock areas/pasture land. There are four separate grazing areas with individual irrigation pivots. There is a fifth pivot not involved with the lactating herd. This pivot is associated with the spray effluent process from the lagoon.

    
    

21. The lactating herd will spend 15 percent of their time in the barn area, known as the milk/feed barn. That barn will be flushed after each milking with the wastewater traveling into the storage lagoon and eventually applied to the pasture land associated with the fifth center pivot.

    
    

22. The spray effluent will be applied to parts of that paddock area served by the fifth pivot only at times when the cows are not there.

    
    

23. Dry cows and heifers will be located in the field area served by the fifth pivot, and an area just north of the fifth pivot area will also serve as pasture land for the non-lactating cows. In the fifth pivot area the non- lactating cows will rotate through paddock areas within that pasture.

    
    

24. Likewise the lactating herds will rotate through the other four pivot areas. The rotation in these pastures is a fourteen day rotation. One day is

    spent in each paddock. Within each individual pivot of pivots 1 through 4, one herd of cows will be located under pivot 1, another herd under pivot 2 and a third under pivots 3 and 4.

    
    

25. Each day the lactating herds will spend about 20 hours in the pasture land under the pivots and roughly 4 hours walking to and from the milk/feed barn and being milked.

    
    

26. More specifically, the manure deposited in the milk barn will be flushed from floors to a gutter collector. From there the waste goes by a gravity flow from the gutter collector to a concrete lined ditch and into a solids separator trap. The solids separator is designed to remove all of the sand and the majority of the course solids associated with waste. This assists in the reduction of solids accumulation in the storage pond. The solids that are collected at the separator will undergo dewatering and then will be transported and spread on adjacent land owned by Pioneer.

    
    

27. The amount of solids that enter the lagoon/pond are expected to be applied to the pasture land under pivot number 5. Nonetheless, on a quarterly basis, solids accumulations are noted when the lagoon/storage pond is pumped. If there is a significant accumulation, then solids will be removed from the pond.

    
    

28. As well as accommodating the 25 year 24 hour design storm, the storage lagoon/pond is designed to hold 10 days of dairy operation wastewater and direct rain fall simultaneously. As extra capacity, the lagoon/pond has one foot of free board for safety in the operation. The effect of the one foot free board is to create a condition where it would require approximately a 1,000 year storm event to over-top the pond.

    
    

29. Approximately two and a half hours of effluent irrigation per week is necessary to accommodate the wastewater from the milk barn. The irrigation system for effluent is sensitive to the level of water in the lagoon/pond.

    
    

30. The pasture under the fifth pivot also uses fresh water irrigation separately.

    
    

31. Attention will be paid to the maintenance of grass in the pasture areas available to the dairy herd. The health of the grass is supported by freshwater irrigation, effluent spray irrigation and direct waste deposits from the herd.

    
    

32. The applicant has given the necessary assurances concerning nutrient management of nitrogen and phosphorus.

    
    

33. As part of stormwater management system, the herd will not be allowed into areas of the property which are within the 100 year flood plain.

    
    

34. There are five groundwater monitoring wells, the second, third and fifth of which are to determine compliance with DEP water quality standards.

    
    

35. Under wet conditions where there is a high incidence of rainfall, pivot number 5 may be in operation; however, without intention to operate that pivot in a manner which will cause spray effluent to be applied to ponded areas, thereby producing runoff on the surface.

36. The soils in the area have high permeability rates in the range of 6-

    20 inches per hour. Thus, waste water easily infiltrates the soil at acceptable rates unless there is an extremely high water table, which is not anticipated. It is especially unlikely that a high water table of long duration will be experienced.

    
    

37. Dr. Dale Bottcher is an expert in agricultural engineering and dairy design. He established that the project as proposed by Pioneer will provide the necessary reasonable assurances to the DEP that the activities associated with the dairy will not contaminate surface waters or exceed standards for the protection of groundwater. To arrive at those assurances, the applicant has assessed the location of the herd densities in the dairy operation, the soil uptakes related to nutrient balance, with specific emphasis on the assurance that there will not be excess nitrogen available that could migrate from the project site to adjacent property and contaminate that adjacent property by exceeding DEP standards.

    
    

38. As established by Dr. Bottcher the animal waste produced that is immediately dropped on the pasture land and the spray effluent from the lagoon/pond is used up by the grass on the pasture land. In fact, there is not enough animal waste generated to produce the grasses. It is anticipated the animal waste will produce 50-70 percent of the necessary nutrients for the grasses. Therefore, a supplemental fertilization program is to be put in place for the grass production. To make certain that the grass is uptaking the nutrients adequately the monitoring wells will be installed. The monitoring wells are strategically located to insure groundwater protection.

    
    

39. Under pivot 5, the spray effluent pasture, in combination between the spray effluent and direct deposits by the animals, 250 pounds of nitrogen will be produced a year of the needed 700 pounds.

    
    

40. As Dr. Bottcher established there are areas on the property that are subject to periodic flooding for no more than a few weeks per year. During those times that land will not be available to the herd in its grazing activities. Again, those ponded areas will not receive spray effluent under pivot 5.

    
    

41. Dr. Bottcher gave the opinion, within a reasonable degree of engineering certainty, that the dairy waste management system would abate and prevent water pollution to the extent required by applicable statutes and rules and that the activities in the project would not allow for discharge or cause water pollution in violation of those applicable DEP rules. His opinion is accepted.

    
    

42. Dr. Bottcher established that the phosphorus produced on the site is bound up in the soils and the groundwater is further protected in some places by an underlying clay layer.

    
    

43. Mark Bardolph, DEP Environmental Manager within the Industrial Wastewater Section is an expert in dairy design. His opinion that no problems will be experienced with ponding of water is accepted.

    
    

44. The opinion by Mr. Bardolph that this design is a better alternative to traditional diary designs is accepted.

    
    

45. John Davis is a Professional Geologist. He is employed by DEP. He is an expert in hydro-geology. His opinion as a hydro-geologist that reasonable

    assurances have been given that the proposed dairy waste management system will comply with applicable laws and rules is accepted.

    
    

46. David Bolam is an expert in environmental engineering who works for DEP. He does not believe that there is a problem with ponding of water on the site that would interfere with the operation of the dairy waste management system. That opinion is accepted. His professional opinion that reasonable assurances have been given that the construction and operation of the waste management system would comply with the applicable DEP laws and rules is accepted.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

48. Pioneer has the burden to provide reasonable assurances that it will abate and prevent water pollution to the extent required by DEP rules and that the proposed project will not discharge or cause pollution in violation of statutes and rules.

    
    

49. The applicable statutory provisions are found within Chapter 403, Florida Statutes and Chapter 62-4, 62-302, 62-520, 62-522 and 62-660, Florida Administrative Code. Pioneer has provided the necessary assurances as supported by DEP. That proof was not overcome by Desmond.

    
    

50. Pioneer has not opposed and Desmond has failed to prove why the general and specific conditions associated with the proposed construction permit should not be required. There is sufficient basis in fact and law to impose those requirements.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That a final order be entered which grants Pioneer permission to construct the 0.033 MGD dairy waste management system as proposed by DEP in its draft permit with general and specipic conditions.

DONE and ENTERED this 1st day of May, 1995, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 1st day of May, 1995.

APPENDIX

The following discussion is given concerning the proposed findings of fact by the parties:

Petitioner's Facts:

Desmond:

Paragraph 1 is contrary to facts found.

Paragraph 2 is rejected in its suggestion that Pioneer has not adequately met applicable DEP rules.

Paragraph 3 is accepted in its suggestion that the Floridan Aquifer is vulnerable to contamination but is rejected in the suggestion that the activities by Pioneer will cause such contamination.

Paragraph 4 is contrary to facts found.

Pioneer and DEP:

Paragraph 1 is not necessary to the resolution of dispute. Paragrap 2 through 4 are subordinate to facts found.

Paragraphs 5 and 6 are accepted to the extent that they correspond to the findings in the recommended order related to testimony from witnesses for Pioneer and DEP and the suggestion that the allegations by Desmond have not been proven.

COPIES FURNISHED:

Noel K. Desmond

Post Office Box 1771 Chiefland, FL 32626-1771

Marty Smith, Esquire Post Office Box 3310 Ocala, FL 34478-3310

Thomas I. Mayton, Esquire

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 94-006602

Orders for Case No: 94-006602