STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONCERNED CITIZENS OF WEST )

ESCAMBIA COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 80-713

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION ) and BRADLEY PROPERTIES, INC., )

)

Respondents, )

and )

)

FAIRFIELD VILLAGE, LTD., )

)

Intervenor-Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, Michael Pearce Dodson, held a final hearing in this case on June 23, 1980, in Pensacola, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Artice L. McGraw, Esquire

Cetti & McGraw

26 East Garden Street Pensacola, Florida 32501

and

P. Michael Patterson, Esquire

26 East Garden Street Pensacola, Florida 32501

For Respondent: William W. Deane, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Intervenor: Alan C. Sheppard, Esquire

Emmanuel Sheppard & Condon Seventh Floor, Century Bank Tower Post Office Drawer 1271 Pensacola, Florida 32596

PROCEDURAL BACKGROUND

These proceedings began on April 9, 1980, when Petitioner, Concerned Citizens of West Escambia County, Florida (Citizens) filed a petition for an administrative hearing on a Letter of Intent from the Department of Environmental Regulation to authorize modification of the Fairfield Village (FFV) waste water collection system by eliminating several conditions earlier attached to the Village's sewage collection and transmission permit. On receipt of the petition, DER forwarded the case to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

At that final hearing on June 23, 1980, Fairfield Village, Ltd., and Bradley Construction, Inc. moved for leave to intervene on the side of the Respondents. The Motion was granted. Prior to the hearing Respondent Bradley Properties, Inc. moved for an order consolidating the instant case with Concerned Citizens of West Escambia County, Florida v. Department of Environmental Regulation and Fairfield Village, DOAH Case No. 80-1067. Because the issues in the two cases are substantially different, that Motion was denied in an order dated, June 18, 1980.

At the final hearing Petitioner offered Exhibit 1 which was received into evidence. DER offered Exhibits 1-7 which were received into evidence. Bradley Construction Company's Composite Exhibit 1 was offered and received into evidence.

After the hearing all parties submitted proposed findings of fact. Careful consideration has been given to those proposed findings. To the extent they are not contained in this order they are rejected as being either not supported by competent substantial evidence or as irrelevant and immaterial to the issues for determination here.

FINDINGS OF FACT

1. The Concerned Citizens of West Escambia County, Florida, is an unincorporated neighborhood association begun in the Spring of 1978. It has been concerned with local sewage and flood water problems. Many of the Citizens' members live in the LiFair subdivision abutting the Fairfield Village project on the south.

   
   

2. FFV is a 72-unit low income federally subsidized housing project planned for development on a 7.47 acre site. The site is located on the west side of Fairfield Drive between Jackson Street and the Lillian Highway (U.S. 98) in Escambia County.

   
   

3. On February 1, 1980, DER issued permit number CS17-25848 for the construction of a dry sewage collection system to serve Fairfield Village. That permit contained conditions 15, 16 and 17 which state:

   
   

   1. This permit does not authorize the connection of this collection to the Avondale STP. Separate authorization for the actual connection of this col- lection system to the Avondale STP is required from this department. Such authorization shall be applied for by separate letter to the Department.

   2. This permit shall not be construed to infer any assurance that the necessary authorization for connection shall be granted. Any such authorization shall

      be granted only when adequate treatment in accordance with rules, regulations, and issued permits of the Department is available for any flows transported by by the collection system.

      
      

   3. The system shall be inspected for any sediment debris and flushed prior to connection to the Escambia County sewer system.

      
      

4. Subsequently on March 20, 1980, Paul F. McCartney on behalf of FFV requested that the above conditions be lifted as the moratorium on new connections to the ATP had been lifted.

   
   

5. On January 1, 1980, C. H. Wigley, Jr., Director of Utilities for Escambia County gave notice that the two-year moratorium on new sewer taps into the ATP was lifted. This action was the result of a planned diversion of approximately 300,000 gallons per day (GPD) from the ATP to the Warrington Treatment Plant.

   
   

6. DER on April 1, 1980, gave notice of its intent to remove conditions 15, 16 and 17 from FFV's permit. Petitioner on April 9, 1980, filed its petition for an administrative hearing on DER's proposed action.

   
   

7. The anticipated waste water discharge from FFV is approximately 22,000 GPD. As a result of the 300,000 GPD diversion from the ATP to the Warrington Plant, there is more than adequate treatment capacity at the ATP for handling the FFV inflow.

   
   

8. The ATP operates under DER permit number TP17-2080 issued on April 4, 1978 and has operated within its designed capabilities of 1,000,000 GPD since August, 1979. There is no showing that a connection of the FFV transmission line to the ATP will cause any violation of the plant's permit conditions.

   
   

9. Evidence was presented by Petitioners that sewage lines in the Citizen's neighborhood frequently overflow. There was no showing however that any instance of overflow was caused by the ATP exceeding its operating capacity. It is more likely that their neighborhood sewage problems result from blockages in the transmission lines or result from pump-outages at the lift station between their neighborhood and the treatment plant. No showing was made that the connection of FFV to the ATP would adversely affect sewage collection in the LiFair subdivision.

   
   

10. The monthly operating reports submitted to DER by the ATP were shown to be accurate. DER may reasonably rely on them in determining whether the requested permit modifications should be granted.

    
    

    CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1979).

    
    

12. Bradley Properties, Inc., has challenged the ability of the Citizens as a distinct entity to bring these proceedings. Bradley's position is that:

    
    

    1. The Petition was not filed by a party within the meaning of Chapter 120.52(10), Florida Statutes. The Concerned Citizens of West Escambia County, Florida, from the testimony is not a corporation, a partner- ship, or any organized group other than a "mob". There (sic) organization has no charter, constitution, by-laws or board of directors. They claim to have officers but how they came to be and what entity their

    jurisdiction comes from is completely vague.

    
    

    While the Citizens do not have all the ritualistic paraphernalia of a chartered corporation they are a sufficiently cohesive group to be afforded the status of a "person" under Section 120.52(10), Florida Statutes (1979). United States v. SCRAP, 412 U.S. 699 (1973).

    
    

13. Just as an applicant for a permit has the burden of providing reasonable assurances that the permitted activity will comply with all the relevant statutes and regulations, FFV here in seeking to have its permit modified bears the same burden. Section 17-4.07(1), Florida Administrative Code. The applicant has met that burden. The expert testimony and the facts indicate that the ATP can adequately treat the additional waste water which FFV will generate without resulting in any overload of the plant's capacity.

    
    

14. The Citizens have argued that consideration may not be given to the 300,000 GPD diversion to the Warrington Treatment Plant. They assert:

    
    

    Respondent, Bradley Properties, Inc.,

    would have the court rely on representation that 300,000 gallons of sewage would be diverted in the future from the Avondale Plant to the Warrington Treatment Plant.

    Respondent's reliance is mistaken for two reasons. First, the fact that the diversion of sewage from Avondale is being planned tends to substantiate

    Petitioner's contention that the Avondale Plant is overloaded. Second, your honor must decide whether Bradley Properties, Inc. and Department of Environmental Regulation have met their burden at the time of the Notice of Intent to issue the permit and not whether the permit re- requirement may or may not be met in

    the future.

    
    

    That argument misconceives the function of a Section 120.57 hearing. It is not to review DER's decision to issue its Notice of Intent to grant the permit modification. Section 120.57 hearings are a de novo proceeding designed to

    formulate agency decisions in the first instance. Couch Construction Company v. Department of Transportation, 361 So.2d 172, 175 (Fla. 1st DCA 1978); McDonald

    v. Department of Banking and Finance, 346 So.2d 569, 586 (Fla. 1st DCA 1977).

    
    

15. The evidence demonstrates that the applicant has provided DER reasonable assurances that the removal of conditions 15, 16 and 17 from its permit will not cause the discharge of pollution contrary to Chapters 17-3, 17- 4, 17-6 and 17-19, Florida Administrative Code, and Chapter 403, Florida Statutes (1979).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Environmental Regulation enter a final order authorizing the modification of permit number CS17-25848 by eliminating conditions 15, 16 and 17. It is further RECOMMENDED that the Petition of the Concerned Citizens of West Escambia County, Florida, be dismissed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this day of 18th of December, 1980.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1980.

COPIES FURNISHED:

Artice L. McGraw, Esq. CETTI & McGRAW

26 East Garden Street Pensacola, FL 32501

P. Michael Patterson, Esq.

26 East Garden Street Pensacola, FL 32501

William W. Deane, Esq. Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32301

Alan C. Sheppard, Esq. EMMANUEL SHEPPARD & CONDON

Seventh Floor, Century Bank Tower Post Office Drawer 1271 Pensacola, FL 32596

Docket for Case No: 80-000713

Orders for Case No: 80-000713