STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CNC ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-1654

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, in Room

229 of the Technical Services Building, Haven Street, Clearwater, Florida, on November 30, 1976, commencing at 10:30 A.M.

APPEARANCES

For Petitioner: Mr. Harvey V. Delzer

Delzer, Edwards, Martin, Coulter & Parker Post Office Box 279

Port Richie, Florida 33568

For Respondent: Mr. Reynold L. Caleen, Jr.

Acting General Counsel

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301 FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant, facts are found:

1. In June of 1976, petitioner submitted to respondent a request for a permit to enlarge its existing sewage treatment plant from a capacity of 50,000 gallons per day to a capacity of 150,000 gallons per day. The proposal included the enlargement of the percolation pond to accept the extra load. The existing plant is presently overloaded, carrying close to 80,000 gallons per day.

   
   

2. Prior to submitting its application for a permit, petitioner's engineer took percolation tests to determine the quality of the soil in the proposed percolation pond. Such tests led him to the conclusion that the pond as designed, to be four acres in size, would only have to percolate a small percentage of the time and would perform adequately. The original pond has a rock bottom and did not percolate as well as the petitioner's proposed pond.

   The method of testing performed by petitioner's engineer is a method used to

   determine the percolation rate of soil for septic tank purposes. With the exception of one occasion, petitioner's engineer was unaware of any failures or violations in the past operation of the existing sewage treatment plant.

   
   

3. Operation reports of the existing system from March, May & August of 1976 show biochemical oxygen demand treatment and removals of suspended solids of less than ninety percent. There have also been several instances of overflows of treated effluent. At least two notices of violations for overflows or discharges into area surface waters were issued to the petitioner by respondent or its predecessor. Others have been issued from the Pasco County Division of Pollution Control. Breaks in the dike sides and discharges into a canal which leads to the Gulf of Mexico have been observed throughout October and November of 1976. it was the opinion of a Pasco County pollution control inspector that the existing dikes in the present system will not hold in the future. The problem was described as the failure of the terrain to adequately percolate, thus resulting in pond overflows.

   
   

4. Based upon insufficient supporting data and a failure to show that past violations would not continue, respondent's District Engineer felt that he had not been provided reasonable assurance that petitioner's proposal would ensure protection of public health, safety and welfare. Thereafter, petitioner requested a hearing on the application denial and the undersigned Hearing Officer was designated to hear the matter and enter a recommended order.

   
   

   CONCLUSIONS OF LAW

   
   

5. An applicant for a permit to construct or enlarge a sewage treatment plant such as proposed by petitioner has the affirmative duty to provide the respondent with reasonable assurance based upon plans, ,test results and other information that the project will not discharge, emit or cause pollution in contravention of respondent's standards, rules or regulations. F.S. Ch. 403;

   F.A.C. Chs. 17-3 and 17-4. In this instance, petitioner has totally failed to meet its burden of proof.

   
   

6. Not only have standards regarding removal of suspended solids and biochemical oxygen demand treatment been violated in the past, petitioner's existing system has had numerous overflows or discharges through its existing dike system. Other than the testing of the proposed pond soil performed by petitioner's engineer, which testing employed a method no longer approved by respondent, the respondent has been given no assurance that the proposed project will not cause pollution or will not continue to result in violation of respondent's rules and regulations. Past notices of violation are grounds for denial of a permit until such time as the project is in full compliance with the law and respondent's rules, regulations and standards. F.A.C. Rule 17-4.07(7). Petitioner has failed in its burden to make an affirmative showing that the project for which the permit is sought will be in the public interest, will not cause water pollution and will comply with respondent's rules, regulations standards.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a permit to enlarge and expand its sewage treatment plant be DENIED.

Respectfully submitted and entered this 30th day of December, 1976, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Mr. Harvey V. Delzer

DELZER, EDWARDS, MARTIN, COULTER & PARKER

P.O. Box 279

Port Richie, Florida 33568

Mr. Reynold L. Caleen, Jr. Acting General Counsel Department of Environmental Regulation

2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

Docket for Case No: 76-001654

Orders for Case No: 76-001654