STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MORRIS KRAMER, )

)

Petitioner, )

and )

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

) CASE NO. 81-1494

Intervenor, )

)

vs. )

)

WILLIAM SPIKOWSKI, et al., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ft. Myers, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter, on September 24, 1981. The parties were represented by:

For Petitioner: James H. Seals, Esquire

Post Office Box 2040

Fort Myers, Florida 33902

For Intervenor: Paul R. Ezatoff, Jr., Esquire and

H. Ray Allen, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: William H. Grace, Esquire

Post Office Box 1480

Fort Myers, Florida 33902

This matter arose on the application of Petitioner to construct a domestic wastewater treatment and disposal system in conjunction with a twenty-four unit condominium project on Pine Island, Lee County. Respondents, who are adjacent and nearby property owners, assert that the treatment and disposal system is not designed to meet the water quality and permitting standards of Chapters 17-3 and 17-4, Florida Administrative Code (F.A.C.)

The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they have been rejected as irrelevant or not supported by the evidence.

FINDINGS OF FACT

1. The proposed wastewater treatment and disposal system is a stationary installation which may reasonably be expected to be a source of pollution. It will consist of a secondary treatment plant employing an aerobic process, and tertiary treatment utilizing a polishing filter.

   
   

2. The effluent produced by these processes will be routed through a disposal field of 2,500 square feet in area, which is of adequate size and construction to handle peak loading. Effluent will be discharged into the disposal field through a distribution box and thereafter percolate through the soil. It will then mix with the groundwater and move toward Jug Creek, eventually flowing into Charlotte Harbor, a Class II waterbody (See Section 17- 3.051, F.A.C.).

   
   

3. The efficiency of the system in removing five-day biochemical oxygen demand (BOD) and suspended solids will exceed 90 percent. The aerobic process will remove 10 to 15 percent of the nitrates and phosphates in the effluent. Further removal of these nutrients will occur through percolation and the planned vegetative ground cover. As a result, the groundwater will not contain significant quantities of these nutrients when it reaches the surface waters.

   
   

4. Groundwater at this site is subject to tidal action and to occasional tidal flooding. In circumstances where unusually high tides result in a high water table, the expected nutrient removal by soil and vegetation may not take place. Similarly, hurricane flooding could cause effluent which is not fully treated to reach surface waters.

   
   

5. The engineers employed by the applicant and the Department of Environmental Regulation have made on-site inspections to determine the level of the water table and soil conditions. They analyzed health department information on fecal coliform and the experience with septic tanks and other disposal plants located in this area. These findings have been incorporated into the system design and proposed location of the polishing pond. The Department requested relocation of the latter facility so as to provide 100 feet separation from the nearest surface waters, and thereafter issued its notice of intent to approve the application.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action pursuant to Subsection 120.57(1), Florida Statutes (F.S.). The proposed project must be approved by the Department of Environmental Regulation pursuant to Sections 403.086 and 403.0876, F.S. and Chapters 17-3 and 17-4, F.A.C. Sections 17-3.051, 17-3.061 and 17-3.111, F.A.C. set forth applicable water quality criteria.

   
   

7. Subsection 17-4.07(1), F.A.C. requires that an applicant must affirmatively provide the Department of Environmental Regulation with reasonable assurance, based on plans, tests and other information that the installation will not cause pollution in contravention of Department standards.

   
   

8. Although the testing has not been exhaustive (as Respondent points out), a generally thorough analysis of relevant data has been conducted, and the

planned facility has been designed to meet or exceed applicable effluent treatment standards under all but the most adverse conditions forseeable. Thus, Petitioner has provided the "reasonable assurance" required by Subsection 17- 4.07(1), F.A.C., and should be granted the permit sought.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That a Final Order be entered by the State of Florida Department of Environmental Regulation granting the applicant, Morris Kramer, a permit to construct a sewage treatment and disposal facility with a design hydraulic capacity of 7,500 gallons.

DONE AND ENTERED this 4th day of November, 1981, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1981.

COPIES FURNISHED:

Paul R. Ezatoff, Jr., Esquire Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

James H. Seals, Esquire Post Office Box 2040

Fort Myers, Florida 33902

William H. Grace, Esquire Post Office Box 1480

Fort Myers, Florida 33902

Docket for Case No: 81-001494

Orders for Case No: 81-001494