STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOXAHATCHEE RIVER ENVIRONMENTAL ) CONTROL DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1676

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

and )

)

TOWN OF JUPITER, FLORIDA, )

)

Intervenor. )

)

RECOMMENDED ORDER

A final hearing was conducted in this matter on March 20 and 21, 1979, in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert A. D'Angio, Jr., Esquire

Oxner, D'Angio & Brown Suite 207, Forum III

1655 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401

For Respondent: Randall E. Denker, Legal Trainee

William P. White, Jr., Esquire Supervising Attorney

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Intervenor: Jerome F. Skrandel, Esquire

Old Fort Cove Plaza 1200 U.S. Highway One

North Palm Beach, Florida 33408

and

Howard Osterman, Esquire 5845 Margate Boulevard

Margate, Florida 33063

On or about June 23, 1978, the Loxahatchee River Environmental Control District ("Petitioner" hereafter) filed an application for a modification of its construction permits pertaining to effluent disposal with the Florida Department of Environmental Regulation (DER hereafter). The Petitioner operates a waste

water treatment plant. The purpose of the application was to allow on-site disposal of effluent via percolation. On or about August 17, DER issued a notice of its intent to deny the permit application. On or about September 1, the Petitioner requested a hearing, and DER forwarded the petition to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing.

The final hearing was scheduled to be conducted as set out above by notice dated January 15, 1979. The Town of Jupiter moved to intervene in the proceeding, and the motion was granted. At the final hearing the Petitioner called the following witnesses: Peter Pimentel, the Petitioner's Executive Director; Charles A. Anderson, a consulting engineer who has been employed by the Petitioner, and who qualified as an expert in the area of civil engineering; Richard H. Martens, the Petitioner's Supervisor of Operations; Andrew R. Tintle, a chemist employed by the Petitioner; and Richard C. Dent II, the Petitioner's Director of Facilities Management and Director of the Petitioner's Division of Resource Management. The Respondent called Roy M. Duke, the Chief of the Permitting Section of DER's South Florida Subdistrict Office in West Palm Beach, who qualified as an expert in the field of environmental permit applications, and in the field of systems engineering; and Abnish Amar, a Senior water Resources Engineer employed by the South Florida water Management District, who qualified as an expert in the area of ground water hydrology. The Intervenor called the following witnesses: James C. Williams, an engineer employed by DER; James B. Harrison, Jr. a professional engineer who specializes in water treatment and waste water systems; Herbert L. Gildan, an attorney who practices in Palm Beach County, Florida; and Vincent P. Amy, a professional ground water geologist.

Hearing Officer's Exhibit 1; Petitioner's Exhibits 1-4, and 6; Respondent's Exhibit 1; and Intervenor's Exhibits 1-4 were offered into evidence and were received. Petitioner's Exhibit 5 was offered into evidence, and was rejected; however, Petitioner's Exhibit 5 is the same document as Respondent's Exhibit 1, which was received in evidence. The parties have submitted post-hearing legal memoranda including Proposed Recommended Orders.

FINDINGS OF FACT

1. The Petitioner is a special tax district created by special act of the Florida Legislature. Chapter 71-822, Laws of Florida. The district covers approximately seventy-two square miles in northern Palm Beach County and southern Martin County, Florida. Petitioner's purpose is to provide water, sewer, drainage and solid waste services within the district. In conformity with its powers, the Petitioner operates an advanced waste water treatment plant on property which it owns in northern Palm Beach County. Petitioner has secured appropriate permits from DER in order to construct and operate the treatment plant. The treatment plant is among the most advanced in southeastern Florida. It has a four million gallon daily capacity, which could be increased to an eight million gallon capacity. In treating waste water the plant utilizes filtration, disinfection, retention in a holding pond, and discharge into a remote off-site area. The present discharge system is to pump effluent from the retaining pond through a canal or drainage system to a recharge or discharge lake which is located approximately three miles north and west of the treatment plant. This is known as the western discharge system, and was installed at a cost of approximately one million dollars. Due to the large amounts of pumping activity, it is an expensive system to utilize.

2. Through its instant application, the Petitioner is seeking a permit allowing it to discharge effluent on-site. Effluent would flow into percolation ponds that have already been constructed. Effluent would settle in the ponds, and eventually would percolate through the soil. This system would he less expensive to operate than the western discharge system. Petitioner is interested in experimenting with the amount of waste water treatment that can be obtained through action of vegetation in the percolation ponds upon the effluent. Such a natural system, if it operated effectively, could save the Petitioner additional money in treating waste water by reducing the need for chemical treatment.

   
   

3. Petitioner's waste water treatment presently results in a discharge of effluent which within some parameters meets even drinking water standards. The Petitioner's system very effectively treats bio-chemical oxygen demand ("bod"), suspended solids, nitrogen, and phosphorus in the effluent. Reports have been submitted by the Petitioner to DER which indicate that the system does not meet DER's standards for advanced waste water treatment. Samples upon which these reports were based were taken at a point in the system before the effluent was subjected to the action of the retention pond and the subsequent bumping into the western discharge system. Samples taken beyond the retention pond indicate that DER's standards are met for "bed", suspended solids, total nitrogen, and total phosphorus.

   
   

4. The Intervenor owns property adjacent to the Petitioner's waste water treatment plant. The Intervenor operates a well field and drinking water treatment plant on the property, and provides drinking water to residents of the Town of Jupiter and surrounding communities from the well field. The Intervenor acquired its treatment plant, and surrounding well fields from a private utility company. The Petitioner was aware of the well field when it purchased the property upon which it presently operates its waste water treatment plant.

   
   

5. While the Petitioner's plant adequately treats waste water in terms of "bod", suspended solids, total nitrogen, and total phosphorus it does not treat the waste water for heavy metals, pesticides, or viruses. These are common elements found in waste water effluent in the south Florida area. The Petitioner's proposal is to discharge its effluent into on-site ponds. The effluent would then percolate into the ground. The retention ponds are located at a distance from 1200 to 1600 feet from the nearest of the Intervenor's wells. Water which percolates from these ponds would flow directly toward the wells, and would eventually find its way into the wells. The flow from the retention ponds to the wells would be increased due to the draw-down effect that the wells have on the surrounding water table. As water is drawn from the wells, the adjoining water table becomes depressed in the area of the wells, and water from the surrounding area flows more rapidly into the area of the wells. Heavy metals will not be filtered out as a result of retention or percolation. Heavy metals in the effluent would eventually find their way into the Intervenor's well fields. Estimates as to the amount of time that it would take for water from the percolation ponds to reach the wells varied from four months to six years. The longer estimate appears the more reasonable; however, the evidence is conclusive that eventually waters from the percolation ponds would reach the wells, and that heavy metals in the water would not be filtered out.

   
   

6. The Petitioner proposes to obviate any problems with heavy metals reaching the well fields by operating testing wells between the percolation ponds and the well fields. If any heavy metals were detected in the ground water, Petitioner would again use the western discharge system rather than the percolation ponds. While this would prevent increased contamination of the

   wells, contamination that had already reached the test wells would reach the Intervenor's wells. It was suggested that the percolation ponds could be drawn down in order to reverse the flow of ground water back into the percolation ponds, thence to be pumped through the western discharge system. In order to accomplish this, however, the percolation ponds would have to be more than forty feet deep, which they are not. The effect of heavy metals intruding into the Intervenor's water supply could be to increase the cost of treatment, or to render the wells unfit for use. Uncontaminated drinking water supplies are rare in the northern Palm Beach County area, and the expense of finding a new water supply is difficult to calculate.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Sections 120.57(1), 120.60, Florida Statutes.

   
   

8. DER has affirmative duties to assure the vitality of drinking water supplies, and of regulating waste water treatment plants through its permitting authority. Chapter 403, Florida Statutes; Chapters 17-4, 17-22, Florida Administrative Code. The applicant for a permit to operate a stationary installation which reasonably can be expected to be a source of pollution, has the affirmative obligation of providing reasonable assurances based upon plans, test results, and other evidence, that the proposed facility will not cause pollution in violation of DER's rules or regulations. Rule 17-4.07, Florida Administrative Code.

   
   

9. The Petitioner has failed to provide reasonable assurance that utilization of percolation ponds will not result in contamination of the Intervenor's well fields. Petitioner offered no evidence to show the levels of heavy metals, pesticides, and viruses that are in its effluent. Since these are elements likely to be in effluent in south Florida, it is incumbent upon the Petitioner to establish that they do not exist in such quantities as would contaminate the Intervenor's well fields.

   
   

10. Petitioner has contended that since DER did not request' further information of it, DER failed to follow the provisions of Section 120.60(2), Florida Statutes, and its own rules and regulations. Petitioner contends that because of its failure to follow the statutes and rules, DER is compelled to issue Petitioner its permit. This contention is without merit. Petitioner's application for a permit was complete. DER issued its notice of intent to deny the permit because of the perceived failure to provide reasonable assurances with respect to heavy metals, pesticides, and viruses. Petitioner had the additional opportunity of presenting evidence with respect to these potential pollutants at the hearing conducted in this cause. It did not present any such evidence. Even if DER's action could be construed as a violation of statutes and rules, it would be inappropriate to utilize that failure to require issuance of a permit which could result in the poisoning of an important drinking water supply.

    
    

11. Petitioner's permit application should be denied.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby

RECOMMENDED:

That Petitioner's application for a permit to allow it to operate its waste water treatment plant so as to discharge effluent into percolation ponds located on the site of the Petitioner's plant be denied.

RECOMMENDED this 7th day of May, 1979, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert A. D'Angio, Jr., Esquire Oxner, D'Angio & Brown

Suite 207, Forum III

1655 Palm Beach Lakes Blvd. West Palm Beach, Florida 33401

Jerome F. Skrandel, Esquire Old Fort Cove Plaza

1200 U.S. Highway One

North Palm Beach, Florida 33408

Howard Osterman, Esquire 5845 Margate Boulevard

Margate, Florida 33063

Randall E. Denker, Legal Trainee William P. White, Jr., Esquire Supervising Attorney

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOXAHATCHEE RIVER ENVIRONMENTAL ) CONTROL DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1676

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

and )

)

TOWN OF JUPITER, FLORIDA, )

)

Intervenor. )

)

APPENDIX TO RECOMMENDED ORDER, RULINGS

IN ACCORDANCE WITH SECTION 120.59(2) FLORIDA STATUTES

The parties have submitted post-hearing legal memoranda, including Proposed Findings of Fact and Conclusions of Law. Rulings upon proposed findings and conclusions are set out herein in accordance with Section 120.59(2), Florida Statutes.

RULINGS RESPECTING PETITIONER

The following findings of fact proposed by the Petitioner have been substantially adopted in the Recommended Order and are hereby adopted to the extent that they are not in conflict with findings of fact set out in the Recommended Order: Petitioner's Proposed Findings 1, 3, 4, 5, 6, 8, 13, and 14.

Petitioner's proposed finding 2 is adopted except that the word "waste water" on the 5th line of the proposed finding should read "drinking water".

Petitioner's proposed findings 7, 18, 19, 20, and 21 relate to the Petitioner's assertion that since DER did not request further information from the Petitioner, the Petitioner's application must be considered to have provided reasonable assurance. This assertion is utterly without merit. The Petitioner's application was complete. To the extent that the Petitioner was in any way prejudiced by a failure of DER to inquire as to concentrations of heavy metals, pesticides, and viruses in the effluent, Petitioner had ample opportunity to cure the prejudice by presenting evidence at the final hearing conducted in this case. Petitioner did not present such evidence.

Petitioner's proposed finding 9 is hereby rejected.

Petitioner's proposed findings 10, 11, 12, 15, 16, an 17 relate to the capacities of Petitioner's present waste water treatment facility, and the likelihood of contaminants reaching the Intervenor's well fields from percolation ponds. The evidence supports a finding that the Petitioner's waste

water treatment facility is "state of the art". It adequately treats waste water for "bod", suspended solids, nitrogen, and phosphorus. No evidence was presented, however, to establish whether the plant is effective in treating heavy metals, pesticides, and viruses. In fact, the evidence established that the plant provides no treatment for such contaminants. Such contaminants, if they are permitted to be discharged into the percolating ponds, will reach the Intervenor's well fields. Merely testing for the existence of such contaminants at a point between the ponds and the well fields will not prevent them from reaching the well fields. It would only allow the opportunity to limit the degree of contamination.

Petitioner's proposed finding 22 would impose upon Petitioner and Intervenor the affirmative burden of establishing that the proposed project would cause contamination in the Intervenor's well fields. The burden in this case lies with the Petitioner, and the proposed finding is rejected on that account.

Petitioner's proposed finding 23 is rejected as contrary to the evidence.

RULINGS RESPECTING DER

DER proposed findings 1-4, and 6-16 have been substantially adopted in the Recommended Order. They are hereby adopted to the extent that they are not in conflict with findings of fact set out in the Recommended Order.

DER proposed finding 5 is rejected. Reports which indicate that Petitioner's plant was not meeting the treatment standards were based upon samples that were not taken at the end of the treatment process. Samples taken at the end of the process indicate that the plant is meeting standards for "bod", suspended solids, nitrogen, and phosphorus.

DER proposed conclusions of law 1-6 have been substantially adopted in the Recommended Order, and are hereby adopted to the extent that they are not in conflict with conclusions of law set out in the Recommended Order.

ENTERED this 7th day of May, 1979, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert A. D'Angio, Jr., Esquire Oxner, D'Angio & Brown

Suite 207, Forum III

1655 Palm Beach Lakes Blvd. West Palm Beach, Florida 33401

Jerome F. Skrandel, Esquire Old Fort Cove Plaza

1200 U.S. Highway One

North Palm Beach, Florida 33408

Howard Osterman, Esquire 5845 Margate Boulevard

Margate, Florida 33063

Randall E. Denker, Legal Trainee William P. White, Jr., Esquire Supervising Attorney

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 78-001676

Orders for Case No: 78-001676