STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PORT ANTIGUA TOWNHOUSE )
ASSOCIATION, INC., )
)
Petitioner, )
)
vs. ) Case No. 00-0137
) SEANIC CORPORATION and DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )
)
Respondents. )
) PORT ANTIGUA PROPERTY OWNERS ) ASSOCIATION, )
)
Petitioner, )
)
vs. ) Case No. 00-0139
) SEANIC CORPORATION and DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on September 11 and 12, 2000, in
Marathon, Florida.
APPEARANCES
For Petitioners: Lee R. Rohe, Esquire
Post Office Box 500252 Marathon, Florida 33050
For Respondent Seanic Corporation:
Evan Goldenberg, Esquire White & Case, LLP
First Union Financial Center
200 South Biscayne Boulevard Miami, Florida 33131-5309
For Respondent Department of Environmental Protection:
Francine Ffolkes, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
PRELIMINARY STATEMENT
Respondent Seanic Corporation applied to Respondent Department of Environmental Protection for a permit to operate an existing domestic wastewater treatment facility to serve its proposed condominium development on Lower Matecumbe Key. The Department entered its notice of intent to issue the operating permit. Petitioners, along with a third petitioner, the Lower Matecumbe Key Association, timely filed their petitions challenging the Department's issuance of that permit. All three petitions were transmitted to the Division of Administrative Hearings to conduct the evidentiary proceeding, and the three
cases were subsequently consolidated. Thereafter, Lower Matecumbe Key Association voluntarily dismissed its petition.
Respondent Seanic Corporation presented the testimony of Glen Boe; Abdul B. Ahmadi, Ph.D.; John B. Myers; and Gustavo Rios. The Department offered no witnesses. Petitioners presented the testimony of Joan B. Rose, Ph.D.; Eugene Nicholas; Edwin Deryke; Joseph B. Anderson; Lucy Niebler-Spare;
Susan Borrero; Patrick M. Yananton; and Sydney T. Bacchus, Ph.D. Additionally, Seanic's Exhibits numbered 1, 5, 8, 13, 14, 18,
19, 38, and 41 and Petitioners' Exhibits numbered 4A-C, 5, 6, 11, and 22A and B were admitted in evidence.
After the conclusion of the final hearing, Respondents Seanic Corporation and the Department submitted a joint proposed recommended order and Petitioners submitted a proposed recommended order. Those documents have been considered in the entry of this Recommended Order.
FINDINGS OF FACT
On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules
with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface.
On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit.
On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's.
Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility.
Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean
"permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act."
Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations:
Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L
Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L
These standards are frequently referred to as the "10-10-10-1 Standard."
In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard.
Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90
feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively.
On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules.
The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately
one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation.
The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L.
The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires.
Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels
of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively.
Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well.
Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well.
In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported
dilution rates on the range of seven orders of magnitude, i.e.,
10 million times.
After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods.
The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations.
Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility.
The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine.
Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth.
Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria.
Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was
expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition.
The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit.
PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending.
Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health.
Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any
frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
It is undisputed that the standard for the issuance of the operating permit that is the subject of this proceeding is whether Seanic has provided the Department with reasonable assurances that the operation of the wastewater facility will not discharge or cause pollution in contravention of the Department's standards or rules.
Petitioners allege that the Seanic facility may discharge viruses and other microbes for which the Department has not promulgated any standards or rules. However, Section 403.051(2), Florida Statutes, precludes the Department from denying a permit application based upon standards, criteria, or
requirements that have not been promulgated as a rule. Because it is undisputed that the Department has not promulgated any rules or standards regarding concentrations of viruses in G-III groundwater and Class III surface waters, evidence that the Seanic facility may discharge viruses to these waters may not be considered in determining whether the operating permit should be issued to Seanic. Similarly, evidence of anticipated discharges of enterococci and waterborne parasites for which there are no Department rules or standards may not be considered.
Petitioners further allege that the depth of the underground injection wells at the Seanic facility is insufficient, notwithstanding the fact that the wells comply with the requirements of Chapter 99-395, Laws of Florida. It is undisputed that the Department has not promulgated any rules requiring such wells to be deeper that 90 feet or cased to a depth greater than 60 feet. Accordingly, Section 403.051, Florida Statutes, does not allow denial of Seanic's proposed operating permit based upon the alleged insufficiency of the depth of the two injection wells.
Seanic has provided reasonable assurances that its facility will comply with applicable Department rules and standards, and such rules and standards are incorporated into the draft permit. Petitioners offered no evidence that the
facility cannot, or will not, comply with any of the terms of the draft permit.
Department rules prohibit the discharge to surface waters of levels of nutrients that are expected to cause an imbalance in natural populations of aquatic flora or fauna. See
Rule 62-302.530(48)(b), Florida Administrative Code. There are no numerical surface water quality standards for total nitrogen, total phosphorus, or nutrients. Further, the evidence reveals that the infinitesimal levels of nutrients that might enter Captain's Cove and its adjacent canals as a result of the Seanic facility cannot be expected to cause an imbalance in natural populations of aquatic flora or fauna. Petitioners' expert's testimony that the addition of any nutrients to the waters of Captain's Cove and its adjacent canals will cause massive algae blooms and upset the ecological balance of those waters is so extreme that it lacks any credibility.
Petitioners argue that Seanic should be held to the stricter effluent standards contained in Chapter 99-395, Laws of Florida, because the facility is not an existing facility. To reach that conclusion, Petitioners argue that the language "existing sewage facilities" means the facility must have an existing discharge. However, the legislature did not use the language "existing discharge." Further, the Department interprets the language to mean an existing facility, not an
existing discharge. Although Petitioners wish to interpret the statute in a manner more favorable to their position, that responsibility has been given to the Department.
Seanic seeks an award of its attorney's fees and costs for this proceeding against PATA, PATA's president, PAPOA, PAPOA's president, Lower Matecumbe Key Association, and Lower Matecumbe Key Association's president, pursuant to Sections 120.569(2)(e) and 120.595(1), Florida Statutes. Seanic alleges that this proceeding was brought for an improper purpose.
As to Seanic's motion that attorney's fees and costs be awarded against Lower Matecumbe Key Association and its president, Seanic's request is untimely. Although Lower Matecumbe Key Association filed a petition for an administrative hearing opposing the Department's preliminary decision to grant Seanic's application for an operating permit, that Petitioner filed a notice of voluntary dismissal on August 1, 2000. On August 7, 2000, the file of the Division of Administrative Hearings in that case was closed, and jurisdiction was returned to the Department by operation of law. Seanic did not move, orally or in writing, for an award of attorney's fees and costs until after the file was closed. Although Seanic cites cases for the proposition that the filing of a voluntary dismissal does not divest the forum of jurisdiction to determine attorney's fees and costs where such a request was pending prior
to the voluntary dismissal, no authority has been cited, and none has been found, to support Seanic's contention that a request for attorney's fees and costs can be made for the first time after the case is over.
Section 120.569(2)(e), Florida Statutes, provides as
follows:
(2)(e) All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party's attorney, or the party's qualified representative.
The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
Seanic asserts that PATA's and PAPOA's petitions were filed in contravention of this statutory requirement because Petitioners did not make reasonable inquiry regarding the merits of their petitions before filing them.
Petitioners' witnesses testified that they only had a short time in which to file their petitions, that they discussed
doing so with each other, with an attorney, with residents with degrees in microbiology and geology, and with a resident who oversees a large sewage treatment facility in Broward County.
Petitioners' witnesses further testified that they had been monitoring the water quality of Captain's Cove and the adjacent canals, even testing samples four times a year for twelve years. They also testified regarding their awareness of much newspaper publicity about deteriorated water quality near the site and about some studies that suggested serious harm to the environment from injection well effluent. One of the petitions even attached a copy of one of the studies.
Finally, Petitioners' witnesses denied that the petitions were filed for any improper purpose and, specifically, were not filed to harass, to cause unnecessary delay, for frivolous purpose, or to needlessly increase Seanic's costs. Seanic offered no evidence to the contrary. The testimony of Petitioners' witnesses regarding the decisions to file their petitions was sincere and credible. They thought they could change the Department's intended agency action.
Although Seanic does not consider Petitioners to have made a reasonable inquiry, it is determined that they did so. Further, Section 120.569(2)(e), Florida Statutes, does not mandate the award of attorney's fees and costs for failure to make reasonable inquiry before signing a pleading. It only
makes mandatory the imposition of an appropriate sanction, which sanction may include the award of reasonable expenses. Seanic's attorney's fees and costs are not a reasonable sanction in this case.
Section 120.595(1)(b), Florida Statutes, provides that the final order in a proceeding such as this one shall award reasonable costs and a reasonable attorney's fee only where the non-prevailing adverse party is determined in the recommended order to have participated for an improper purpose as defined in Subsection (1)(c) and Section 120.569(2)(e). The additional definition contained in Subsection (1)(c) relates to a non- prevailing adverse party that
has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing [sic] adverse party did not establish either the factual or legal merits of its position . . . .
There is no evidence that PAPOA, PAPOA's president, or PATA's president have participated in any other proceeding against Seanic. Although the evidence reveals that PATA and others are engaged in litigation with Seanic and others in the circuit court, the evidence also reveals that that proceeding is still pending. Accordingly, attorney's fees and costs cannot be awarded against PAPOA, PAPOA's president, PATA, or PATA's
president as a result of the additional definition of improper purpose found in Section 120.595(1)(c), Florida Statutes.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs.
DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000.
COPIES FURNISHED:
Francine Ffolkes, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Evan Goldenberg, Esquire White & Case, LLP
First Union Financial Center
200 South Biscayne Boulevard Miami, Florida 33131-5309
Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050
Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-0300
Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-0300
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 22, 2000 | Agency Final Order | |
| Nov. 13, 2000 | Recommended Order | Although Petitioners failed to offer evidence as to any rules that might be violated by an operating permit for a domestic wastewater treatment facility, they did not challenge the permit for an improper purpose. |
