STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARK HAIR, BRENDA AND JAMES BURNSED, and JERRY R. HOLLAND, | ) ) ) | |
) | ||
Petitioners, | ) | |
) | ||
vs. | ) Case Nos. | 01-1028 |
) | 01-1029 | |
DEPARTMENT OF ENVIRONMENTAL | ) | 01-1030 |
PROTECTION and TIR-NA-N'OG, | ) | |
INC., | ) | |
) | ||
Respondents. | ) |
______________________________)
RECOMMENDED ORDER
Pursuant to notice, these matters were heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on
September 25, 2001, in Fort Pierce, Florida.
APPEARANCES
For Petitioner: Mark Hair, pro se
(01-1028) 885 Northeast 336th Street
Okeechobee, Florida 34972-3603
For Petitioners: Jonathan Jay Kirschner, Esquire (01-1029) Kirschner & Garland, P.A.
102 North Second Street
Fort Pierce, Florida 34960-4403
For Petitioner: Jerry R. Holland, pro se
(01-1030) 32801 U.S. 441 North, Lot 101
Okeechobee, Florida 34972-0271
For Respondent: John G. Abel (owner) (Tir-na-n'og) 24 Northeast 325th Trail
Okeechobee, Florida 34972-0253
For Respondent: Francine M. Ffolkes, Esquire
(agency) Department of Environmental Protection
3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
The issue is whether Tir-na-n'og, Inc.'s application for renewal of an operating permit for the operation of a residuals management facility in Okeechobee County, Florida, should be approved.
PRELIMINARY STATEMENT
This matter began on December 20, 2000, when Respondent, Department of Environmental Protection, issued its Intent to Issue a renewal permit to Respondent, Tir-na-n'og, Inc., to operate a residuals management facility in Okeechobee County, Florida. Thereafter, Petitions (later amended) challenging the issuance of the permit were filed by Petitioners, Mark Hair (Case No. 01-1028), Brenda and James Burnsed (Case No.
01-1029), and Jerry R. Holland (Case No. 01-1030), wherein Petitioners contended that the permit should not be renewed on numerous grounds. The matters were referred to the Division of Administrative Hearings on March 14, 2001, with a request that an Administrative Law Judge be assigned to conduct a hearing.
By Notice of Hearing dated April 11, 2001, a final hearing was scheduled on June 18 and 19, 2001, in Fort Pierce, Florida. At the request of Petitioners in Case No. 01-1029, the matters were continued to September 25 and 26, 2001, at the same location. A Motion in Limine filed by the Department of Environmental Protection at the outset of the hearing was denied.
At the final hearing, Petitioner in Case No. 01-1028 testified on his own behalf and offered Hair Exhibits 1-5, which were received in evidence. Petitioners in Case No. 01- 1029 testified on their own behalf and presented the testimony of Kenneth A. Breaux, Jr., a professional surveyor; Michael Grezelka, a professional engineer; and Mark Johnson, a worker on their property. Also, they offered Petitioners' Exhibits B1, B5, B5A, B8a-f, B12, B13a-h, B15, B16, B22, B27, B30-B33,
B35-B40, B43, B46, and B47. All Exhibits were received in evidence. Petitioner in Case No. 01-1030 testified on his own behalf and presented the testimony of Dr. Raymond E. Jones and Dr. Wayne R. Johnson. Also, he offered Holland Exhibits 1-3 and 7-9. All were received except Exhibits 7-9. Respondent Department of Environmental Protection presented the testimony of James T. Macon, a professional engineer, who was accepted as an expert in domestic wastewater treatment and disposal, design and reuse, and permitting; David R. Sorenson, a water
plant operator; Francis M. McMurphy, Jr., a professional engineer; Todd R. Brown, an environmental manager, who was accepted as an expert in domestic wastewater; and John G. Abel, owner of the applicant corporation. Also, it offered Respondents' Joint Exhibits 1-4 and 7-11, which were received in evidence.
There is no transcript of the hearing. Proposed Findings of Fact and Conclusions of Law were filed by Petitioners in Case No. 01-1029 and by the agency on October 10, 2001, and they have been considered by the undersigned in the preparation of this Recommended Order. Also, Petitioner in Case No. 01-1028 filed a Closing Statement on October 11, 2001. Finally, Petitioner in Case No. 01-1030 filed a document entitled "Final arguments: of Jerry R. Holland," with attachments, on October 11, 2001, which is the subject of a Motion to Strike by the agency.
FINDINGS OF FACT
Based upon all of the evidence, the following findings of fact are determined:
On May 2, 2000, Respondent, Tir-na-n’og, Inc. (applicant), through its owner and operator, John G. Abel (Abel), made application with Respondent, Department of Environmental Protection (Department), to renew its domestic wastewater facility operating permit FLA016637 for a Residuals
Management Facility (RMF). Although the existing permit’s expiration date was November 8, 2000, the application was filed at least 180 days prior to the expiration of the existing permit, and therefore the permit remains effective pending the outcome of this proceeding.
Petitioners, Mark Hair (Hair), James and Brenda Burnsed (the Burnseds), and Jerry R. Holland (Holland), who all own property adjacent to or near the applicant's property, have challenged the renewal of the permit on the ground that the applicant is violating various statutes and administrative rules. It is fair to infer that an acrimonious relationship exists between Abel and his neighbors, including Petitioners, who have filed numerous telephonic and written complaints against Abel with the Department over the years. A Department witness asserted, however, that all "public" complaints were "unfounded."
The facility is privately owned by Abel and is located on a 247-acre tract of land north of State Road 724 and just west of U.S. Highway 441 near Fort Drum in the northeastern portion of unincorporated Okeechobee County. Besides operating a RMF, Abel also uses the land as pasture to raise 150 head of cattle and award-winning horses, and to grow Callie Grass to make hay.
Abel currently operates a 59,000 gallon-per-day lime stabilization facility (the RMF) for sludge, septage, and domestic food service wastes. Treatment of residuals consists of alkaline stabilization for 2.0 hours at a pH of 12 or higher followed by maintenance of a pH of 11.5 or higher for
22 additional hours.
Treatment of septage consists of alkaline stabilization for 2.0 hours at a pH of 12 or higher or a pH of
12.5 for a minimum of 30 minutes. The pH is maintained at or above 11 until the septage is land applied, but is less than
12.5 at the time of land application.
The RMF is a Type III facility consisting of one 1,250 gallon receiving/screening tank; one 1,250 gallon lime slurry mixing tank; nine 5,000 gallon stabilization tanks; two 6,500 gallon stabilization tanks; two 5,000 gallon emergency storage tanks; two blowers; one lime slurry pump; one irrigation transfer pump; and one tank truck loading pump. Under the proposed permit, flow will be measured in equivalent dry tons/year with a maximum of 242 dry tons/year.
All physical components of the facility are in good working condition, are not leaking, and operate as intended. The engineering review concluded that there are no corrective actions required, no outstanding compliance issues, and the facility has no noted problems or deficiencies. The
Department’s review concluded that there are no outstanding compliance issues or enforcement actions involving the facility.
After treatment, the stabilized residuals are land spread on-site on Abel's property (the ranch) and an adjoining property of unknown size to the southeast known as the Fox property under Department-approved Agricultural Use Plans. Although the Fox property was sold to a third party sometime in 2001, Abel has represented that he has an oral agreement with the new owner to continue to use the land. Any changes in new, modified, or expanded land application sites call for a new or revised Agricultural Use Plan for the site that will be incorporated into the proposed permit as a minor permit revision.
Treated, stabilized residuals from other RMF facilities are also land-spread at the site as described in the Agricultural Use Plan and the cumulative loading annual reports submitted to the DEP. Specific Condition II.33 requires the applicant to maintain records of application zones and application rates and to make these records available for inspection. Specific Condition II.34 requires the permittee to submit an annual summary of residuals application activity, including if more than one facility applies residuals to the same application zones.
The pending application is for renewal of a permit issued in 1995, prior to the effective date of extensive amendments to Chapter 62-640, Florida Administrative Code, which governs the regulation of domestic wastewater residuals. The proposed permit contains updated reporting requirements and forms more particularly suited to the day-to-day operations of an RMF.
Specific Condition I.A.3. of the proposed permit requires that incoming loads to the RMF be reported on Residuals Stabilization Reports or Septage Stabilization Reports and that incoming load manifests be maintained on-site and be readily available for Department inspection. These reports are to be submitted to the Department on a monthly basis as specified in Specific Condition I.A.9.
Under the 1995 permit, the applicant is required to submit monthly reports on Discharge Monitoring Report forms (DMRs) to which is attached the DEP Form 62-640.900(3). That form is a Standard Domestic Wastewater Residuals Record Keeping Form and shows incoming load manifests and daily processing reports for the residuals and septage accepted at the RMF for treatment.
Specific Condition II.18 of the 1995 permit requires the applicant to maintain records and have them available for inspection. Among other things, the records must include the
amount of residuals applied or delivered. The applicant currently maintains these records on-site, and the information is provided to the Department as part of the annual summaries required under Specific Condition II.18.
Rule 62-640.700(6)(a), Florida Administrative Code, requires that a minimum unsaturated soil depth of 2 feet above the water table level is required at the time the residuals are applied to the soil. The Agricultural Use Plan and the rule require that if the seasonal high ground water level will be within 2 feet of the surface or is undetermined, the permittee shall determine the groundwater level in one or more representative locations in each application zone prior to the application of residuals. When residuals cannot be applied due to the constraints of the rule, they must be stored in holding tanks at the plant.
Under the 1995 permit the applicant must record water table levels at the time of application and cannot land- apply the residuals in a particular area if the unsaturated soil depth is less than 2 feet.
To ensure compliance with the above rule, the applicant maintains 6 monitoring wells on-site in each application zone and near the RMF in order to check water table levels prior to spreading residuals in those areas. In addition, Abel has agreed to install 2 or more new monitoring
wells "under lock and key" to be monitored exclusively by the Department. If the permit is renewed, such an agreement should be incorporated into the conditions. At the present time, the applicant operates on a rotation schedule based on ability to land-apply residuals, grow pasture grass, and allow the livestock to graze in a certain area after residuals have been applied in accordance with the applicable Department rules and the 1995 permit.
To avoid runoff or erosion during rain events, which is proscribed by Rule 62-640.700(7), Florida Administrative Code, the land-spread residuals do not sit on top of the soil. Rather, they are disked into the soil after application using a mobile, self-retrieving, high-rate Rainbow irrigation system.
The RMF facility uses lime stabilization to treat liquid residuals or septage for the purpose of meeting the pathogen (disease-causing organisms) and vector attraction (attraction of flies) reduction requirements of Rule 62- 640.600, Florida Administrative Code. These reduction requirements are met at the facility to the Class B level for use on restricted public access areas. The ranch is privately owned property and does not have unrestricted public access.
Between 1997 and 1999, the Burnseds purchased 210 acres of land located immediately south of, and adjacent to,
the ranch and the Fox property. Also to the south of the ranch and immediately adjacent to the west of the Burnsed property are 80 acres of land on which Roto-Rooter once spread residuals. After the Burnseds filed a complaint, Roto-Rooter ceased using the property for that purpose. The Burnseds desire to build a home on their land but are understandably reluctant to do so at this time given the nature of the activities on the ranch.
To the north of the ranch is the Boggy Creek Branch and to the south of the Burnsed property is the Fort Drum Creek, both of which flow essentially northeast into the St. Johns River. The applicant's property varies in topography with the high point being in the northwest corner where the RMF is located and the low points being further south and southeast. Surface water generally flows south toward the Burnsed property. There is no ditch or other holding device to prevent runoff from the ranch or Fox property from going directly onto the Burnsed property during rain events. If the permit is renewed, such a device would be appropriate, given the topography of the land. The topographical map for the area shows a 65-foot contour on the ranch sloping down to a
60-foot contour on the Burnsed property to the south and the Fort Drum Creek and sloping down to a 60-foot contour to the north at Boggy Branch Creek.
To the northwest of the ranch is a gated retirement community known as Indian Hammocks. Holland is a resident of that community and lives across the street from the ranch. Hair does not live directly adjacent to the ranch, but the trucks which haul residuals to the RMF use the road in front of his house.
The Burnseds contend that the permit should not be renewed under the applicable renewal criteria in Rule 62- 620.335, Florida Administrative Code. More specifically, they contend that the applicant has operated the facility in violation of permit conditions and rule-reporting requirements, in violation of the 2-foot rule, and in violation of minimum setback requirements from surface waters. In addition, Holland contends that the site is not suitable for land-application of residuals, which endangers human health and the environment, and that Abel has violated the setback requirement for adjoining properties. Finally, Hair has contended that spillage or leaks from the trucks occur on the road where his children meet their school bus.
The Burnseds first contend that the applicant has consistently and systematically underreported the amount of residuals applied and delivered to the property. To this end, they introduced evidence (Exhibit B1) consisting of a compilation and comparison of information gleaned from
surveillance videotapes over the period from April 6, 2000, to May 9, 2001, compared with the information reported to the Department by the applicant in its monthly DMR reports. The tapes established that between April and December 2000, at least 285 trucks entered the facility that were not reported on the DMRs. In addition, for the first 5 months of 2001, at least 185 trucks were not reported on the DMRs. When annualized, the latter number is approximately 370 trucks per year.
In response to this allegation, Abel pointed out that each year he receives around 280 truckloads of treated residuals under a contract with the Hutchinson Utility Authority (Authority) which are not carried to the RMF but go directly to land application areas. None of these shipments are required to be reported on the DMRs but rather are reported in the summary reports submitted to the Department on an annual basis. This explanation would account for virtually all of the unrecorded shipments in the year 2000, assuming that all of the Authority shipments occurred during the 9- month surveillance period. More than likely, however, these shipments were staggered throughout the year. In any event, there was no evidence (such as summary annual reports for the year 2000, or a copy of the contract with the Authority) to show the dates on which the Authority made deliveries, to
demonstrate that the unreported trucks were actually carrying treated residuals, as opposed to untreated residuals, or to show that the claimed number of Authority shipments was accurate. Therefore, it is found that the applicant failed to report on his DMRs around 25 percent of the incoming loads of untreated septage or residuals during the year 2000.
Likewise, even after giving credit for the Authority shipments, a significant underreporting would be occurring during the year 2001. These shipments collectively involved several million gallons of septage.
Besides the Authority, there are 11 other facilities in the area which "might" transport treated residuals to Abel's property for land application only. There is no evidence of record, however, to show if any trucks hauling treated residuals were received from the other sources, and if so, the number. Moreover, as noted above, the annual summary reports were not made a part of this record so that those figures could be compared to the number of trucks identified in the surveillance tapes. In the absence of any credible evidence to the contrary, it is found that the applicant has violated a condition of his 1995 permit, namely, that he failed to accurately report all incoming loads on his monthly DMRs.
The Burnseds further contend that the applicant is in violation of the 2-foot rule regarding the unsaturated soil depth, and therefore the property is no longer suitable for land application of residuals. To support this contention, the Burnseds sited 6 monitoring wells around the western and southern perimeters of the ranch and Fox properties and introduced into evidence the results of samplings taken in September 2001. These samplings showed unsaturated soil depths in each well of less than 2 feet, and that 4 of the 6 wells had depths of less than 1 foot. As discussed in findings of fact 14-16, however, the 2-foot rule is required at the time residuals are applied to the soil. Nothing in the permit documents or Department rule requires an unsaturated soil depth at all locations at all times before a site can be used for residuals application.
Petitioners Holland and Burnseds further contend
that the low areas on the ranch and Fox properties where surface water exists are subject to the minimum setback requirements in the Department’s rules. In general, a 200- foot setback is required in a residuals application zone from surface waters that are classified as waters of the state.
Through recent aerial photographs, Petitioners established that standing water is now found in multiple areas of the Abel and Fox properties for much of the year due to an alleviation
of drought conditions that previously existed. However, these surface waters are located completely within the Abel and Fox property boundaries and have not been classified as waters of the state by the Department. Therefore, the setback requirement does not apply.
The Agricultural Use Plan for the ranch establishes buffer areas where residuals are not applied. The buffer areas include any required setbacks from property boundaries and occupied buildings. While the Department witness was unable to give a precise distance for the required setbacks from property boundaries (except whatever the "rules" called for), it can be inferred that at least some minimal separation is required. As recently as 6 months before the hearing, Holland personally observed a truck spreading residuals no more than 8 feet from the property line. Other testimony supports a finding that spreading of this nature has occurred on other isolated occasions. These acts constitute a violation of the existing permit.
Holland also contends that the land application of residuals at the ranch and Fox properties, over time, endangers human health and the environment. In support of this contention, he presented testimony from a physician who resides in Indian Hammocks and opined that the ranch is a public health problem and should be "eradicated" since the
residuals contain numerous bacteria and viruses which can be spread to neighboring properties. He had no concrete evidence, however, to show that several illnesses in the general neighborhood were a direct result of the applicant's operation. That is to say, the evidence presented was speculative, and no direct causal connection was established between the illnesses and the existing operation.
The Burnseds have further contended that Abel's RMF and land-application sites are a source of objectionable odors, in violation of Rule 62-296.320(2), Florida Administrative Code. That rule prohibits the "discharge of air pollutants which cause or contribute to an objectionable odor." Both Burnseds have smelled such an odor "several times each year" since purchasing their property a few years ago, especially if the winds are coming out of the west. In addition, a worker on their property became ill in July or August 2000 after smelling odors just after sludge was applied by a truck onto the nearby Fox property.
The RMF facility is located near the northwest corner of the property away from the Burnsed property that is located to the south. While the Department points out that immediately adjacent to the Burnsed property is the former land-spreading site once used by Roto-Rooter, and that site was more than likely the source of any objectionable odors,
Roto Rooter has ceased operations. Even so, given the fact that odors have been detected only "several times" over the past few years by the Burnseds, and appropriate chemicals are being applied in the tanks to control the odor, reasonable assurance has been given that the RMF is not in violation of the odor rule.
Petitioner Hair, who lives near the Abel property, introduced photographs into evidence to demonstrate that trucks carrying residuals to the RMF either spilled or leaked materials at the intersection of U.S. Highway 441 and 325th Trail, which is the site of a school bus stop. Because his children must walk through that area to catch the school bus, Hair is concerned that his children may become ill from walking on the contaminated road. While this is a legitimate and valid health concern, and the leakage may constitute a violation of some regulation by the trucking company, it is not a ground to deny the renewal of the permit or a matter within the Department's jurisdiction.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2000).
As the applicant in this cause, Tir-na-n'og, Inc. bears the burden of showing by a preponderance of the evidence that it is entitled to renewal of its license. See, e.g., Cordes v. State, Dep't of Envir. Reg., 582 So. 2d 652, 654 (Fla. 1st DCA 1991).
DEP has regulatory jurisdiction over the RMF operation and domestic wastewater residuals management, use, and land-application under Sections 403.087 and 403.088, Florida Statutes, and Chapters 62-620 and 62-640, Florida Administrative Code.
Rule 62-620.335(5), Florida Administrative Code, provides that the following are causes for denying an RMF permit renewal:
Violation by the permittee of any condition of the permit;
The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;
A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit termination;
A change in any condition that requires either a temporary or permanent reduction or elimination of any discharge, any domestic wastewater reuse or disposal system, or any domestic residuals use or disposal practice controlled by the permit;
Failure to submit required information or required fees;
Failure to pay annual fees or penalty assessments for noncompliance; or
After review of the application and the information on monitoring and monthly reports, the Department determines that the applicant has not provided reasonable assurance that the wastewater facility or activity will be operated in accordance with chapter 403, F.S., and applicable Department rules.
The more persuasive evidence supports a conclusion that the applicant has violated a condition of its permit by failing to report all incoming loads on his DMRs in the years 2000 and 2001. Under Rule 62-620.335(5)(a), Florida Administrative Code, such a violation constitutes a ground for denying a permit renewal. The applicant has also violated the requirement that no residuals be applied within the setback area for adjoining property boundaries. While this violation by itself would be insufficient to deny the application since it happened on only a few isolated occasions, it must be considered here since another more serious violation has occurred. Therefore, even though the applicant has satisfied all other relevant requirements for renewal of its permit, the two violations are sufficient to deny the application.
The Motion to Strike Final Arguments of Jerry R. Holland is denied. However, the documents attached to the Final Arguments have not been considered by the undersigned.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Tir- na-n'og, Inc. for renewal of its domestic wastewater facility operating permit FLA0166637.
DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida.
___________________________________ DONALD R. ALEXANDER
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 16th day of November, 2001.
COPIES FURNISHED:
Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Jonathan Jay Kirschner, Esquire Kirschner & Garland, P.A.
101 North Second Street
Fort Pierce, Florida 34960-4403
Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Mark Hair
885 Northeast 336th Street Okeechobee, Florida 34792-3603
Jerry R. Holland
32801 U.S. Highway 441 North, Lot 101
Okeechobee, Florida 34792-0271
John G. Abel
24 Northeast 325th Trail Okeechobee, Florida 34792-0253
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 01, 2002 | Agency Final Order | |
| Nov. 16, 2001 | Recommended Order | Where permit holder violated conditions of existing permit, application for renewal of permit for residual treatment facility denied. |
