STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PERDIDO KEY DEVELOPMENT )

ASSOCIATION, INC. and ) SOUTHWEST ESCAMBIA IMPROVEMENT ) ASSOCIATION., )

)

Petitioner, )

)

vs. ) CASE NO. 78-2382

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and PILOT )

PROPERTIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 14, 1980, in the Grand Jury Room of the United States Courthouse and Post Office, Pensacola, Florida. The issue for determination in the proceeding is whether the construction permit application of Pilot Properties, Inc. for expansion of an existing wastewater treatment facility on Perdido Key should be granted.

APPEARANCES

For Petitioner: P. Michael Paterson

26 East Garden Street Pensacola, Florida 32501

For Respondent: William L. Hyde Department of Assistant General Counsel

Environmental Twin Towers Office Building Regulations: 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent Richard T. Fulton Pilot Properties, General Counsel

Inc.: Pilot Properties, Inc.

664 Cherry Street Winter Park, Florida

FINDINGS OF FACT

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

1. On or about August 1, 1978, respondent Pilot Properties, Inc. filed an application with the Department of Environmental Regulation for the issuance of

   a construction permit to expand and enlarge a wastewater treatment facility from 18,000 gallons per day to 150,000 gallons per day. The DER issued its notice of intent to issue the permit on November 13, 1978, and the Perdido Key Development Association, Inc. timely requested a hearing on said notice. Over the objection of respondent Pilot Properties, Southwest Escambia Improvement Association, Inc. was joined as a party petitioner. The Perdido Key Development Association, Inc. subsequently withdrew as a petitioner.

   
   

2. The remaining petitioner, Southwest Escambia Improvement Association, Inc. is comprised of members who reside on, own property on or have a business interest in Perdido Key. Among its purpose are the improvement of the Perdido Key community and the protection of the environment. The members of the Association utilize Old River for recreational and commercial purposes.

   
   

3. The proposed expanded facility is designed to serve cluster homes and condominium complexes on Perdido Key, for a total of approximately 428 units. It will utilize a contact stabilization process whereby raw sewage enters the plant from the individual units, receives treatment and then the effluent is discharged evenly through a spreader or equalizer into two percolation ponds

   continuing approximately 54,000 square feet. The facility is designed to remove

   95 percent of B. O. D. and suspended solids. The plant is not designed to remove nutrients. The percolation ponds serve as a disposal device, and not a treatment device. The ponds are to be constructed at an elevation of six feet. Considering fluctuation, the percolation pond bottoms will be separated from the groundwater by three feet. It is an accepted DER guideline to require a three foot separation between the groundwater and a percolation pond. The conditions of the proposed permit require that a three foot buffer zone be maintained between the bottom of the ponds and the maximum groundwater elevation.

   
   

4. The nearest edge of the percolation pond will be located approximately

   105 to 110 feet from the water line of Old River. The effluent will be discharged from the plant to the percolation pond and then to the groundwater, which ultimately flows in the direction of Old River. Groundwater monitoring wells are provided to measure the level of nitrogen.

   
   

5. The soil on Perdido Key is course-type sand, with little clay or silt. It has a very rapid vertical percolation rate. According to the respondent's witness who qualified as an expert in ecology and botany, the process of adsorption, precipitation and denitrification which occurs as groundwater moves horizontally will prevent the degradation of Old River. This witness observed no suspicious levels of phosphate in samples from Old River. This witness observed no suspicious levels of phosphate in samples from Old River. He found the phosphate nitrate and fecal chloroform level of Old River comparable to that found in other clean water bodies.

   
   

6. The petitioner's witness who qualified as an expert in aquatic ecology took samples of groundwater and sand from various areas on Perdido Key to analyze their nitrate and phosphate content. It was his conclusion that phosphate was not attenuated by the sands and that nutrients, particularly phosphate, are being discharged into Old River from sewage treatment facilities existing on Perdido Key. He observed a shifting of the composition of flora in Old River near the site of another existing sewage treatment facility which was not designed to remove nitrates or phosphates. However, the other existing facility was not shown to be comparable in the size of its percolation ponds, the pond elevation from the groundwater or in the manner of discharge form the plant to the percolation pond. This witness did agree that the spreading or equalizing method of discharging effluent from the plant to the 54,000 square

   feet of percolation ponds could delay the entrance of nutrients to Old River by as much as five months.

   
   

7. The petitioner produced a witness who was skilled in the operation and maintenance of wastewater treatment plants similar in design to that proposed by respondent Pilot Properties. This witness testified that this type of facility required greater operating time due to difficulties encountered by hydraulic imbalances on clarifiers and the upward flow of discharge. The witness had no knowledge as to the future operating plans of the respondent.

   
   

8. The two respondents presented witnesses who were qualified as experts in the areas of design and construction of sewage treatment systems. Both witnesses had reviewed the subject permit application and were of the opinion that if the proposed plant is constructed as designed, it will meet the minimum treatment standards required by DER's statutes and rules.

   
   

9. The application submitted by Pilot Properties was for the issuance of a construction permit. Among the conditions of the proposed issuance of such a construction permit is a requirement that the permitted obtain an operation permit sixty days prior to the expiration date of the construction permit.

   Prior to the issuance of an operating permit, the applicant must provide the Department of Environmental Regulation with four months of results of analysis and flow measurements. An operation permit is issued only to those facilities which are able to operate within the standards of DER's rules. If the plant does not properly operate, DER requires the necessary corrections and modifications to bring the plant into compliance. DER may also prohibit further hookups if the plant operates improperly.

   
   

   CONCLUSIONS OF LAW

   
   

10. The petitioner herein has adequately demonstrated that it has standing as a substantially interested person in the issuance or denial of the requested permit.

    
    

11. Prior to the construction and operation of nay stationary installation which may reasonably be expected to be a source of air or water pollution, a permit from the Department of Environmental Regulation is required. Florida Statutes, 403.087(1). Such a permit may be issued by DER only when it is determined that the installation is equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with DER's standards and rules. Florida Statutes, 403.087(4).

    
    

12. Here, the evidence adequately demonstrates that Pilot Properties has provided the Department of Environmental Regulation with reasonable assurances that the proposed facility will not violate state water quality standards and that it will comply with the applicable statutes, rules and standards. The petitioner's concern that the quality of water of Old River will be degraded by the construction or operation of the proposed facility has not been substantiated by competent evidence.

    
    

13. The petitioner attempted to illustrate that the proposed facility would violate or be inconsistent with the 208 Area Wide Management Plan for Escambia County. Objections to this testimony on the grounds of relevancy were sustained by the undersigned Hearing Officer. Florida Statutes, 403.051 provides that all standards, criteria and requirements for wastewater treatment systems be promulgated as rules, and that issuance of permits not be withheld on the basis of standards, criteria or requirements not adopted as rules. There was no

    showing that either at the time of the permit application or at the time of the hearing the 208 Plan was required by rule to be considered by DER when issuing permits.

    
    

14. The undersigned has carefully considered the proposed recommended order submitted by Pilot Properties and the comments on the evidence submitted by the petitioner. To the extent that the proposed findings of fact are not contained herein, they are rejected as being either irrelevant and immaterial to the issues presented for determination or as not having been supported by substantial competent evidence.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to the Respondent Pilot Properties, Inc. the requested construction permit subject to the conditions contained in the Department's initial notice of intent to issue the permit.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day March of 1980.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Honorable Jacob Varn Secretary, Department of

Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301

T. Michael Patterson, Esquire

26 East Garden Street Pensacola, Florida 32501

Robert T. Fulton General Counsel

Pilot Properties, Inc. 664 Cherry Street

Winter Park, Florida 32789

William Hyde, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 78-002382

Orders for Case No: 78-002382