STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. TERESA DOCK ASSOCIATION, ) INC., and H.S. OVEN, )

)

Petitioners, )

)

vs. ) CASE NO. 78-2246

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

)

Respondent, )

and )

)

LOMAX SMITH and BAY NORTH )

CORPORATION, )

)

Intervenors, )

and )

)

FRANKLIN COUNTY, FLORIDA, )

)

Intervenor. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, on October 10-11, 1979, at Tallahassee, Florida, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioners: George E. Lewis, II, Esquire

316 East Park Avenue Tallahassee, Florida 32303

For Respondent: William L. Hyde, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Intervenors Ben H. Wilkinson, Esquire

Lomax Smith and Pennington, Wilkinson, Gary and Dunlap Bay North Corp.: Post Office Box 3875

Tallahassee, Florida 32303

For Intervenor Alfred O. Shuler, Esquire Franklin County Post Office Box 850

Florida: Apalachicola, Florida 32320

ISSUE

Whether Bay North Corporation should be issued a permit to construct a domestic wastewater treatment and disposal system at Camp Weed, Franklin County, Florida, pursuant to Chapter 403, Florida Statutes.

FINDINGS OF FACT

1. On February 27, 1978, Lomax Smith, a builder and developer in Tallahassee, Florida, entered into an agreement with the Protestant Episcopal Church in the Diocese of Florida to purchase some 42 acres of real property and the improvements thereon known as "Camp Weed" which is located in Franklin County, Florida. The purchase price of the property was $725,000, with an earnest money deposit of $20,000, and closing of the transaction to be on or before July 1, 1978. At the time of purchase, eight dormitory and several accessory buildings were located on the property which utilized septic tanks for sewage disposal. An existing deep well is in the northwest portion of the property for a water supply. Smith proposed to develop the property by the sale of lots, remodel some of the existing buildings, and construct new housing units. He employed the engineering firm of Broward Davis and Associates, Inc., Tallahassee, Florida, to prepare the necessary design plans and a state environmental permit application for a proposed domestic wastewater treatment plant to be located on the site. (Testimony of L. Smith, N. Smith, Exhibits 12, 13)

   
   

2. On September 6, 1978, Smith filed an application with Respondent Department of Environmental Regulation (DER) for a permit to construct the sewage treatment plant (STP) at Camp Weed. He signed the application as owner of the property although he had not closed the purchase transaction nor acquired legal title at that time. The application and supporting plans were reviewed in the Northwest District Office of the Department of Environmental Regulation after site investigation, and it was determined that construction of the facility would be in accordance with applicable laws and regulations. A construction permit was issued to Smith for the STP on October 10, 1978, subject to certain specified conditions attached to the permit. Notification of the permit issuance was not preceded by a notice of intent to grant the permit, nor were any third parties advised of its issuance. Petitioners St. Teresa Dock Association, Inc. (then St. Teresa Dock Association) and H.S. Oven first learned of the permit issuance when their counsel was informed by Smith's counsel on November 3, 1978, that the permit had been issued. Petitioners thereafter on November 17 filed a petition for hearing with DER. (Testimony of L. Smith, Huff, Exhibits 1, 4-5, 8)

   
   

3. Camp Weed is bounded on the north by U.S. Highway 98 and on the south by the Gulf of Mexico. The planned site for the STP is in the northeast corner of the tract which is some twelve feet above mean sea level and approximately 950 feet from the shoreline. The elevation of the property on the northwestern side is about 24 feet and is five feet in the middle. The land slopes generally toward the middle area and drains in a southerly direction to the gulf. The subdivision of St. Teresa where Petitioners' members own summer homes is located immediately west of Camp Weed. The members of the St. Teresa Dock Association, Inc., and Petitioner Hamilton S. Oven use the beach and gulf waters for boating, fishing, and other recreational purposes. About a dozen shallow wells in the St. Teresa subdivision provide drinking water for the residents. They are located over 1700 feet southwest from the site of the proposed STP. There are two ponds north of the St. Teresa area adjacent to U.S. Highway 98. An artesian

   well is located in the gulf about 25 feet south of the Camp Weed property. (Testimony of Huff, N. Smith, Oven, Sensabaugh, Exhibits 2,7, 9-11, 22, 24)

   
   

4. The proposed plant is designed to provide sewage treatment for 132 housing units containing an estimated population of 3 persons per unit. A gravity flow collection system to a pumping station will produce a peak influent rate of 29,700 gallons per day with an estimated biological oxygen demand (BOD) loading of 49.6 pounds per day. A basket strainer on the influent line will remove trash. Plant operation will involve the use of aeration tanks, clarifier, chlorination, sand filter and clear well for discharge to a percolation pond. A polishing pond was originally planned, but was deleted at the suggestion of the DER because it performs the same function as the proposed sand filter. Two percolation ponds for alternate use will be construed so that the pond bottom is twelve feet above sea level. A soil test revealed that a sand layer extends under the shallow surface top soil to a depth of approximately 10 feet before reaching the shallow ground water table and that the effluent will percolate through the sand at the rate of one inch per minute. A five foot soil boring by DER failed to encounter ground water at that level and show that rate of percolation through the sand would be acceptable. The ground water table is subject to an unknown variance indepth during the wet and dry seasons of the year depending on the amount of rainfall. Although tide fluctuations may also have some effect on depth of the ground water table, the tide most likely will be of minimum influence due to the distance of the plant site from the gulf. Percolation of at least three feet through sand before reaching ground water is sufficient to meet DER policy requirements. (Testimony of Huff, N. Smith, Bishop, Exhibits 1, 3, 16-17).

   
   

5. Based on the design of the STP, it is predicted by applicant's design engineer that there will be at least 90 percent removal of pollutants after chlorination and prior to passage of the effluent through the sand filter. The engineer predicts that after such filtration, there will be approximately 95 percent removal prior to percolation and that the effluent will then be pure enough to use as drinking water. Further purification will take place during the percolation process. The DER District Supervisor of Domestic Wastewater Permitting, who also is a professional engineer, substantially agrees with those predictions. Actual results of the treatment process can be determined, however, only after tests from monitoring wells are made during actual trial operations of the plant. It is further agreed by those experts that the average chlorine residual content in the effluent will be 0.5 parts per million. The DER supervisor therefore is of the opinion that, if the STP is properly operated, the processed effluent will not degrade ground waters, not adversely affect the wells in the St. Teresa Community or the waters of the gulf. After percolation, there is further dilution and ultimately the ground water which reaches the gulf in eight to ten days will be in a purer form than prior to introduction of the effluent. Although a twenty-year storm criterion was applied in the design of the percolation ponds, a catastrophic storm such as a hurricane was not taken into consideration since it would not be economically feasible to design for such an effect and, in any event, super dilution caused by such a storm would negate the possibility of water quality degradation. (Testimony of Huff, N. Smith, Exhibit 1)

   
   

6. The buildup of sludge in the plant's holding tank will require removal about once a year when the plant is in full operation. The applicant will employ a certified individual to operate the plant and to remove sludge periodically to an appropriate place for disposal in an authorized manner. DER regards sludge disposal to be a matter for determination at the time application

   is made for an operating permit. (Testimony of Huff, L. Smith, McNeill, N. Smith, Exhibit 1)

   
   

7. The applicant estimates that the construction of the plant and collection system will cost approximately $1,000 per housing unit for a total of

   $132,000. It is planned to recover this cost on the sale of lots. A condition of such purchases will be that the sewage system and treatment plant will be operated by a home owners association which is to be activated in the near future. Maintenance cost of the sewage plant will be shared by the individual members. Approximately twenty or twenty-five members are required for economical operation of the plant. (Testimony of N. Smith, L. Smith)

   
   

8. The county zoning classification for the Camp Weed area is currently the subject of litigation by the applicant in the Franklin County Circuit Court and the result of that litigation as to permitted density of housing will determine the amount of units to be constructed by the applicant. In any event, if the applicant does not secure a county building permit, any DER construction permit would expire at the termination of the time granted therefor. (Testimony of L. Smith, Huff, Exhibit 24)

   
   

9. At the time Intervenor Lomax Smith signed the permit application, Bay North Corporation had not been formed. It was incorporated in November, 1978, in order that Smith could obtain financing to complete the property purchase. The transaction was closed November 6, 1978, and a warranty deed to the property was issued to Bay North Corporation by the Episcopal Church in the Diocese of Florida, Inc. The deed was recorded in the public records of Franklin County on November 7, 1978. Lomax Smith is the president and principal stockholder of Bay North Corporation. Promissory notes secured by mortgages to the Southern Bank of Tallahassee and the Episcopal Diocese of Florida in the amounts of $350,000 and $362,500 respectively, were executed by Bay North Corporation on the same date. Pursuant to a request to DER from Lomax Smith on May 15, 1979, the Northwest District DER Office, on June 29, 1979, purported to transfer the permit to Bay North Corporation and extend the expiration date to September 30, 1980. (Testimony of L. Smith, Huff, Exhibits 6, 14-15, 21)

   
   

10. The construction permit issued in October, 1978, was subject to standard and special conditions, including the requirement that the permit holder comply with county and municipal regulations prior to construction. They provided that monthly reports be furnished to the DER prior to issuance of an operation permit setting forth wastewater characteristics during a trial period of plant operation. They also required that the facility meet the treatment requirements contained in Chapter 17-3, F.A.C., including a 90 percent reduction in BOD and suspended solids based on concentration of the influent entering the plant. The conditions further provide that at the time of application for an operation permit, it must be shown that a certified operator under Chapter 17- 16, F.A.C., is retained, together with a copy of any contract for contract operation of the facility. Additionally, the conditions require that two monitoring wells be established upstream and downstream of the ponds and that quarterly ground water samples be analyzed and reported to DER. A further condition provides that a three-foot buffer zone must be maintained between the bottom of the percolation ponds and the maximum elevation of the ground water. (Exhibit 8)

    
    

    CONCLUSIONS OF LAW

    
    

11. The construction permit sought by the applicant is required generally by Section 403.087, Florida Statutes, which prohibits the construction of a

    stationary installation reasonably expected to be a source of water pollution without such a permit issued by the DER. DER rules implementing this statutory requirement which were in effect at the time of the application must be applied in evaluating the permit request. Sexton Cove Estates, Inc. v. State of Florida Pollution Board, 325 So.2d 468 (Fla. 1st DCA 1976). At the time, Rule 17-4.26, Florida Administrative Code, provided pertinently as follows:

    
    

    1. No person shall . . . construct . . . any . . . sewage disposal system or sewage treatment facilities without a current and valid permit from the Department, pursuant to the provisions of Chapter 17-6, Florida Administrative Code, unless the . . . treatment and disposal system will provide adequate and effective treatment in accordance with the rules and regulations of the Department....

       
       

       (4) Applications for a permit under this section shall be in accordance with Part I, Chapter 17-4, Florida Administrative Code.

       
       

12. Rule 17-3.04(1) provides that sewage wastes must be effectively treated "by the latest modern technological advances as approved by the regulatory agency" and that discharges from privately owned domestic waste plants will comply with the water quality standards of the state with 90 percent treatment or better. The foregoing findings of fact clearly establish that the applicant will more than meet this requirement in its treatment and disposal of wastewater effluent. In fact, the evidence shows that the effluent probably could be used for human consumption after percolation. It is therefore concluded that the DER has been provided reasonable assurances that the proposed system will not adversely affect the ground water underneath the site or the waters of the Gulf of Mexico.

    
    

13. Petitioners' concerns about the disposal of sludge from the sewage treatment plant are premature and properly can be addressed during the processing of an application for an operating permit. Their contention that the DER could not transfer the permit from Lomax Smith to Bay North Corporation after administrative proceedings were in progress is correct. However, the question of the appropriate party to whom any permit should be issued properly may be resolved in this proceeding. Petitioner's further claim that Lomax Smith was not the title holder of the Camp Weed property, nor did he have authority from the Diocese of Florida to apply for the construction permit is not deemed meritorious. Smith held an equitable interest in the property at the time of the application by virtue of his purchase contract. In any event, any such possible deficiency is technical in nature which may also be cured in the instant proceeding. Petitioners' complaint that the applicant did not furnish an engineering report to the DER as required by Rule 17-4.21(1)(c) is without merit. Testimony of the representative of the DER District Office established that the information requested and provided by the applicant constituted an "engineering report" which conformed to its requirements.

    
    

14. In view of the foregoing, it is concluded that the applicant has provided the necessary assurances to the DER that construction of the proposed sewage treatment plant will meet pertinent law and regulation, and that

    therefore such permit should be issued subject to the conditions originally proposed by the Department.

    
    

15. The proposed recommended orders submitted by the parties have been fully considered and those findings of fact and conclusions of law contained therein that have not been incorporated into this Recommended Order are considered to be either unnecessary or unwarranted under the facts and law of the case.

    
    

16. In view of the determination in paragraph 4 above, it is considered unnecessary to further address the contentions of the applicant as to Petitioners' alleged lack of standing in this proceeding and as to whether final agency action had been taken by the DER when it issued the permit on October 10, 1978.

RECOMMENDATION

That the Department of Environmental Regulation issue the requested permit to Bay North Corporation, subject to the conditions attached to the permit issued on October 10, 1978.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of November, 1979.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

George E. Lewis, II, Esq.

316 East Park Avenue Tallahassee, FL 32303

William L. Hyde, Esq. Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32301

Ben H. Wilkinson, Esq.

Pennington, Wilkinson, Gary and Dunlap

Post Office Box 3875 Tallahassee, FL 32303

Alfred O. Shuler, Esq. Post Office Box 850 Apalachicola, FL 32320

Docket for Case No: 78-002246

Orders for Case No: 78-002246