STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLANS SUBDIVISION HOMEOWNERS' ) ASSOCIATION, INC., et al., )

)

Petitioner, )

)

vs. ) CASE NO. 83-106

)

THOMAS E. WASDIN, President, ) BEACH WOODS; and STATE OF )

FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on August 11, 1983, in Melbourne, Florida. The following appearances were entered: Philip C. Bayle, Melbourne, Florida, appeared on his own behalf Dennis R. Erdley, Tallahassee, Florida, appeared on behalf of the Respondent, Department of Environmental Regulation; and Bruce W. Jacobus, Cocoa Beach, Florida, appeared on behalf of the applicant, Thomas E. Wasdin.

On or about November 17, 1982, Thomas E. Wasdin filed an application to construct a domestic wastewater treatment facility with the Department of Environmental Regulation. On or about December 17, 1982, the Department issued a letter giving notice of its intention to issue the permit. The notice was published on December 23, 1982. The Petitioner Philip C. Hayle and others filed a petition for hearing with the Department. The matter was forwarded to the office of the Division of Administrative Hearings on January 11, 1983. The Department filed a Motion for More Definite Statement, which was granted by Order dated January 27, 1983. Petitioners were directed to file petitions comporting with Rule 28-5.201(2), Florida Administrative Code. Such a petition was filed on behalf of several Petitioners, and the hearing was scheduled to be conducted on March 24, 1983. The applicant thereafter entered into negotiations with the Department to relocate the plant. The hearing was continued in order that negotiations leading to a relocation could be completed. The amended application was reviewed by the Department, and a new letter giving notice of the Department's intent to issue the permit wads distributed and published in a local newspaper. The Petitioner Bayle and others again requested a hearing.

The hearing was rescheduled to be conducted as set out above by notice dated June 15, 1983.

At the hearing, the attorney who had represented several Petitioners appeared and indicated an intention to withdraw from the proceeding. The Petitioner Bayle concurred in the regust, and counsel was released. Bayle appeared on his own behalf. He did not attempt to represent the interests of any other Petitioners, and no other Petitioners appeared on their own behalf or through counsel. The requests for hearing were all dismissed except the request for hearing filed by Bayle.

The applicant, Thomas E. Wasdin, appeared as a witness on his own behalf and called the following additional witnesses: Raoul H. Wilson, a civil engineer; and Mark Stephens, a consulting hydrologist. The Department called Edward L. Davenport, the Department's domestic waste engineer, as its only witness. The Petitioner testified on his own behalf, recalled the witnesses Wasdin and Davenport, and called the following additional witnesses: Anna E. Finley, the owner of a home in the vicinity of the proposed treatment plant; and Mildred Kent, the owner of a home in the vicinity of the proposed plant. DER Exhibits 1 through 7; Applicant's Exhibits 1, 2, and 3; and Petitioner's

Exhibits 1, 6, 7, 9, 10, 11, 14, 15, and 16 were offered into evidence and

received. Petitioner's Exhibits 2, 3, 4, 5, 8, 12, and 13 were offered into evidence and rejected.

The parties have submitted posthearing memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The ultimate issue to be resolved in this proceeding is whether the Department should issue a permit allowing the construction of a wastewater treatment and disposal system as requested in the modified application filed by Thomas E. Wasdin. The applicant and the Department contend that reasonable assurances have been given that the proposed facility will not result in violations of any of the Department's rules or regulations. The Petitioner contends that the proposed facility is located too near to existing shallow water drinking wells and that the facility otherwise fails to comport with the Department's rules and regulations.

FINDINGS OF FACT

1. Petitioner is the president of Beach Woods of Brevard County, Inc. The corporation is the developer of "Beach Woods," a 376-unit planned unit development located in Melbourne Beach, Brevard County, Florida. One hundred eighty of the units have already been developed. Existing regional sewage treatment facilities operated by Brevard County are not adequate to accommodate the total number of units that the applicant proposes to develop. It appears that 24 more hookups are all that the existing facilities will tolerate. Beyond that number, a sewer moratorium is in effect, and unless the applicant can make some other arrangement for disposing of sewage, the development cannot be completed. The county has approved the planned unit development.

   
   

2. In order to meet sewage treatment needs of the proposed development, the applicant is proposing to construct a "package sewage treatment plant" to accommodate waste that exceeds quantities that can be handled by existing regional facilities. Once the regional facilities are upgraded so that the development's sewage treatment needs can be accommodated, the applicant proposes to disassemble the package plant and utilize the regional facilities. The proposed plant would be a 50,000 gallons per day contact stabilization sewage treatment plant. Initially, it would be operated as a 5,000 to 15,000 gallons per day aeration plant. Once loads reach 18,000 gallons per day, it would become a contact stabilization plant. The Present collection and transmission system for sewage that exists at Beach Woods includes an 8-Inch collection

   station from which sewage flows to an existing lift station that pumps effluent via 6-inch pipes to the regional plant. When the proposed plant is completed, a computerized system would be set up to send effluent to the new plants when the limits that the regional plant can accommodate are met. Once the regional plant is upgraded to sufficient capacity, the bypass to the proposed plant would be eliminated, and all units would then be connected to the original collection system.

   
   

3. The proposed treatment plant is based upon proven technology that has been in existence for more than 50 years. The plant should operate reliably, and proper consideration has been given to odor, noise, lighting, and aerosol drift. In close proximity to the plant, it is likely that there would occasionally be a "earthy smell" that would be noticeable, but not objectionable. Outside of the immediate proximity, no odor would be noticeable. Large fans would be operated in connection with the plant, and some noise would result. It does not, however, appear that the noise would be excessive or bothersome, even in the immediate vicinity of the plant. The plant would be lighted by street lights and would not result in any more excessive lights than normal street lights. The plant is not of the sort that aerosol drift is a likely problem. Adequate considerations have been given to providing emergency power to the plant in the event of a power outage. The plant could sit for at least 20 hours without power before any emergency would exist. If there was a power outage in excess of that period, emergency power sources are available. Consideration has been given to the 100-year flood plain. The plant has been placed at an elevation that keeps it outside of the 100-year flood plain. The land application system proposed by the applicant would utilize drain fields that would be alternately rested. Groundwater flows from the area of the proposed drain fields are in a southwesterly direction toward the Indian River. The Indian River in the location of the proposed facility is a "Class III surface water." Groundwater in the area of the proposed facility might be classified as either "G-I" or "G-II." Reasonable assurance has been given that the proposed sewage treatment plant would not operate in such a manner as to degrade surface or ground waters to the extent that any of the Department's specific water quality parameters set out in Chapter 17, Florida Administrative Code, would be violated.

   
   

4. The proposed sewage treatment plant comports with local requirements and has been approved by Brevard County.

   
   

5. The Allans Subdivision is a residential development that is located directly to the north of the Beach Woods development. Petitioner utilizes a shallow water well as a source of drinking water. The proposed land application site of the sewage treatment plant is located within 500 feet of the Petitioner's well. There are at least two other shallow water wells that serve as drinking water sources located within 500 feet of the proposed land application site. The applicant indicated a willingness to move the proposed facility so that no part of it would be located within 500 feet of the shallow drinking water wells. The evidence establishes that the plant could be moved to accomplish that. No specific plan, however was presented. Potential factual issues could exist respecting appropriate buffer zones for any relocation of the facility, even a minor relocation.

   
   

6. The applicant is proposing to develop areas within 100 feet of the proposed facility. The applicant does not, however, propose to locate any public eating, drinking, or bathing facilities within 100 feet of the proposed plant or land application area.

7. No map was presented during the course of proceedings before the Department of Environmental Regulation that preceded the formal administrative hearing or during the hearing itself to establish present and anticipated land uses within one mile of the boundaries of the proposed facility. The facility of such a size that it could not inhibit any conceivable present or proposed future land uses except within 500 feet of the proposed facility.

   
   

8. Evidence was offered at the hearing from which it could be concluded that the Department has, in the past, issued permits for sewage treatment plants located within 500 feet of existing shallow drinking water wells. The testimony was that this has occurred despite a requirement in the Department's rules that there be a 500-foot buffer zone between any such plant and a shallow drinking water supply. No specific evidence was presented as to why the Department has allowed such a breach of its rules or why it should be allowed in this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

   
   

10. The applicant has the burden of providing reasonable assurance that its proposed facility will not result in pollution in contravention of the Department's rules or regulations. Florida Department of Transportation v.

    J.W.C. Company, Inc., 396 So.2d 778 (1 DCA Fla. 1981); Rules 17-1.59 and 17- 4.07(I), Florida Administrative Code. The applicant in this proceeding has established by a preponderance of the evidence that its proposed treatment plant will not result in odor, noise, or lighting in levels that could be harmful or injurious to human health or that it would, except in connection with the location of shallow wells, unreasonably interfere with adjoining property owners. The evidence establishes that the proposed plant wish appropriate conditions imposed can be operated in such a manner so as not to violate any of the Department's specific standards for discharges into ground or surface waters.

    
    

11. In all respects except one, the evidence establishes that the proposed plant will not violate provisions of Florida Statutes or of the Department's rules relating to the construction and operation of sewage treatment plants.

    The Department's Rule 17-6.040(I), Florida Administrative Code, provides that the technical standards and criteria contained in various manuals specified in Paragraph (4) Rule 17-6.060 are incorporated by reference and may be applied, if applicable, in determining whether domestic wastewater facility permits should be issued or denied. The rule provides that the standards adopted by Subsection (4)(q) of the rule are mandatory for land application systems such as proposed by the applicant. Subsection (4)(q) of the rule adopts the Florida Department of Environmental Regulation, 1982, document entitled "Land Application of Domestic Wastewater Effluent in Florida" as the standards for land application systems. The document was received into evidence at the hearing. Section 2.5.1 of the manual specifically requires that the minimum distance between systems such as proposed by the applicant and shallow water supply wells shall be 500 feet. No justification for any variance from this mandatory requirement of the Department's rules has been demonstrated.

    
    

12. The Department and the applicant have suggested that despite the failure to comply with the 500-foot buffer zone, the permit should be issued with the condition that facility be relocated so as to assure an adequate buffer

zone. Testimony at the hearing did establish that such a relocation was possible. Many Potential factual issues could arise, however, in connection with any such relocation. The Department has suggested that the permit be conditioned upon approval of the relocation by a representative of the Department. While it can be surmised that the Department's employee would endeavor to do his job properly, leaving the resolution of potential fact issues to an employee of the Department does not provide the procedural safeguards imposed by the Department's rules and by the Florida Administrative Procedure Act, Chapter 120, Florida Statutes. Since no specific plan to relocate the plant so as to provide the buffer zone required by the Department's rules was presented at the hearing, the application for permit should be denied..

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Environmental Regulation denying the application filed by Thomas E. Wasdin to construct a wastewater treatment plant. The denial should be without prejudice to the applicant's filing a new or amended application that would assure adequate buffer zones as specified in the Department's rules.

RECOMMENDED this 5th day of October, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 5th day of October, 1983.

COPIES FURNISHED:

Mr. Philip C. Bayle

265 Allan Lane

South Melbourne Beach, Florida 32951

Bruce W. Jacobus, Esquire Post Office Box 757

Cocoa Beach, Florida 32931

Dennis R. Erdley, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Ms. Victoria Tschinkel Secretary

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 83-000106

Orders for Case No: 83-000106