STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PERDIDO KEY DEVELOPMENT ) ASSOCIATION, INC. and SOUTHWEST ) ESCAMBIA IMPROVEMENT ASSOCIATION,) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-014

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and RAYMOND M. EWING, ) REALTY, 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 March 16, 1979, in the County Commission Meeting Room, Old Courthouse, Pensacola, Florida. The issue for determination in this proceeding is whether the application of respondent Raymond M. Ewing, Inc. to construct a wastewater treatment facility on Perdido Key should be approved. Subsequent to the hearing, all parties submitted to the Hearing Officer proposed findings of fact and conclusions of law. These documents have been carefully considered. Those proposed findings of fact not substantially incorporated in this Recommended Order are specifically rejected as being either irrelevant and immaterial to the issues under consideration or as not having been supported by substantial, competent evidence.

APPEARANCES

For Petitioners: P. Michael Patterson

26 East Garden Street Pensacola, Florida 32501

For Respondent: Daniel P. Fernandez (Department of Assistant General Counsel

Environmental Twin Towers Office Building Regulation) 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: Jeffrey T. Sauer

(Ewing Realty, Smith, Sauer and Venn, P.A. Inc.) Post Office Box 12446

Pensacola, Florida 32582

FINDINGS OF FACT

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

1. On August 31, 1978, Raymond M. Ewing Realty, Inc., also referred to herein as the "applicant," submitted its application to the Department of Environmental Regulation for a permit to construct an extended aeration wastewater treatment and disposal facility on Perdido Key in Escambia County. The Department of Environmental Regulation issued its notice of intent to issue the permit with conditions on December 5, 1978. The petitioner Perdido Key Development Association timely requested an administrative hearing and the motion to join Southwest Escambia Improvement Association, Inc. as a party petitioner was granted.

   
   

2. The proposed facility is designed to serve a condominium complex on Perdido Key consisting of 72 units. It is expected that 250 gallons of water per day per unit will be discharged into the system, thus requiring an average daily design hydraulic flow of at least 18,000 gallons per day. The plant described in the application will have a capacity to handle 25,000 gallons per day. The plans and specifications, engineering report and application are in substantial conformity with each other.

   
   

3. Substantial residential development presently exists on Perdido Key.

   No central sewer system exists to service Perdido Key, and only septic tanks and package sewage treatment plants are available for waste treatment purposes on the island.

   
   

4. The proposed facility will use an extended aeration process whereby effluent is routed from the individual units through a filter within the plant and then discharged into an underground drainfield system. The facility is designed to remove 95 percent of B.O.D. and suspended solids. Duplicate blowers and pumps are included to insure continued operations in the event of failure of one of the units. In the event of a power failure, a contractual arrangement with the treatment plant operator will provide for the bringing in of emergency electrical generators.

   
   

5. The 100 year flood elevation for this area is eleven feet. The top of the proposed plant is fifteen feet above mean sea level, and a water manifold is provided to prevent water from splashing into the plant. The drainfield is located approximately 330 feet from Old River, a body of water adjacent to Perdido Key. Such location is the farthest and highest reasonable point away from the River.

   
   

6. While the plant is designed to remove over 90 percent of B.O.D. and suspended solids, it is not designed to remove nutrients or phosphorous from the effluent. The drainfield is located on porous coastal dune sand. There is an acceptable distance between the bottom of the drain field and the maximum high ground water level. There was evidence presented which illustrates that nutrients and phosphates will be removed through the absorption and precipitation phenomena as they move through the sand and become diluted by the groundwaters. Vegetation on top of the drainfield will also assist in the removal of phosphates and nitrates. Field testing has not shown any contamination of ground water or Old River by an existing sewage treatment plant.

7. Among the conditions proposed for the issuance of the construction permit is that an application be submitted for an operation permit. Such application must include four months of results analyses and flow measurements to substantiate compliance with the applicable rules of the Department of Environmental Regulation. The initial test results must be provided within six weeks after the facility has been placed in operation. Further conditions require that there be no discharge to area surface waters, and that, prior to placing the facility into operation, the construction be certified and approved as having been completed in accordance with the approved plans and specifications.

   
   

8. The petitioners herein are both organizations whose members own property, reside or have a business interest on Perdido Key. The members of the petitioners use the waters of Old River recreationally and commercially.

   
   

   CONCLUSIONS OF LAW

   
   

9. The petitioners herein have demonstrated that they have standing as substantially interested persons in the issuance or denial of the requested permit.

   
   

10. A permit from the Department of Environmental Regulation is required for the construction and operation of any stationary installation which will reasonably be expected to be a source of air or water pollution Florida Statutes, Section 403.087. Such a permit may only be issued by the Department of Environmental Regulation when it determines that the installation is equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the Department F.S. 403.087(4)

    
    

11. In this proceeding, the evidence demonstrates that the applicant has provided the Department 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.

    
    

12. The petitioner's have raised the issue of inconsistency of the proposed facility with the 208 Area Wide Waste Treatment Management Plan for Escambia, Santa Rosa and Okaloosa Counties. It not being demonstrated that said Plan had been certified by DER or that DER's rules or regulations required consideration of such plans at the time the application was filed with the Department or at the time of the hearing, the undersigned sustained objections based upon the relevancy of said 208 Plan to the granting or denial of the requested permit.

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 Raymond M. Ewing Realty, Inc. the requested construction permit subject to the conditions contained in the Department's initial notice of intent to issue the permit.

Respectfully submitted and entered this 17th day of April, 1979, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

M. Michael Patterson

26 East Garden Street Pensacola, Florida 32501

Daniel P Fernandez Assistant General Counsel Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Jeffrey T. Sauer

Smith, Sauer and Venn, P.A. Post Office Box 12446 Pensacola, Florida 32582

Charles Collette, Esquire Post Office Box 10161 Tallahassee, Florida 32302

Secretary Jake Varn

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 79-000014

Orders for Case No: 79-000014