D. TAYLOR, LANE MOBILE )
Respondent. )
Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 30, 1983, at Panama City, Florida.
For Petitioner: Eugenia L. Williamson, Esquire and
Michael Donovan, Certified Legal Intern Department of Environmental Regulation 2600 Blair Stone Road
For Respondent: B. D. Taylor, pro se
By Notice of Violation and Orders for Corrective Action dated March 18, 1983, the Department of Environmental Regulation (DER) , Petitioner, seeks to require B. D. Taylor, Respondent, to bring his sewage treatment facility near Panama City, Florida, into compliance with regulations for sewage treatment facilities and to eliminate discharge from this plant into Game Farm Creek. It is also alleged that Respondent's temporary operating permit had expired January 1, 1983, and the facility has operated without a permit since that time.
At the hearing Petitioner called five witnesses, Respondent called two witnesses, and 16 exhibits were admitted into evidence. Exhibits 10 and 17 were marked for identification but Exhibit 10 was not offered into evidence and the objection to Exhibit 17 was sustained.
Proposed findings submitted by the parties, to the extent they are incorporated herein, are adopted; otherwise, they are rejected as unsupported by the evidence, unnecessary to the resolution of the issues, or a mere recitation of tie testimony presented at the hearing.
B. D. Taylor, Respondent, is the owner of a wastewater treatment facility near Panama City, Florida, which serves a community of some 125-150 mobile homes at Lane Mobile Home Estates.
The facility has a 24,000 gallons per day capacity to provide secondary treatment of wastewater with percolating ponds. It was first permitted in 1971 upon construction and has been in continuous operation since that time. In 1980 Respondent employed the services of a consultant to apply for a renewal of its temporary Permit to operate a wastewater treatment facility. This application stated the temporary operating permit (TOP) was needed to give Respondent time to connect to the regional wastewater treatment facility. The schedule contained in the following paragraph was submitted by Respondent at the time needed to accomplish this objective,
Following inspection of the facility, a TOP was issued December 5, 1980 (Exhibit 1), and expired January 1, 1983. TOPs are issued to facilities which do not comply with the requirements for Wastewater treatment. Exhibit 1 contained a schedule of compliance to which Respondent was directed to strictly comply to stop the discharge of pollutants from the property on which the facility is located. These conditions are:
Date when preliminary engineering to tie into regional will be complete and notification to DER. July 1, 1981;
Date when engineering to tie into regional system will be complete and notification to DER - June 1, 1982;
Date construction application will be submitted to phase out present facility - March 1, 1982;
Date construction will commence - June 1, 1982;
Date construction is to be complete and so certified - October 1, 1982; and
Date that wastewater effluent disposal system will be certified "in compliance" to permit - January 1, 1903.
None of these conditions or schedules has been met by Respondent. The regional wastewater treatment facility was completed in 1982 and Respondent could have connected to this system in the summer of 1982.
This wastewater treatment facility is a potential source of pollution. The holding ponds are bordered by a ditch which is connected to Game Farm Greek, which is classified as Class III waters. The size of Game Farm Creek is such that any discharge of pollution to this body of water would reduce its classification below Class III. On several occasions in the past there have been breaks in the berm surrounding the holding ponds which allow the wastewater in the holding ponds to flow into the ditch and into Game Farm Creek. Even without a break in the berm, wastewater from these holding ponds will enter Game
Farm Creek either by percolation or overflow of the holding ponds caused by the inability of the soil to absorb the effluent.
On January 28, 1983, this facility was inspected and the results of the inspection were discussed with the operators of the facility. The plant was again inspected on February 8 and February 18, 1983. These inspections disclosed solids were not settling out of the wastewater in the settling tanks; inadequate chlorination of the wastewater was being obtained in the chlorination tanks; samples taken from various points in the system, the ditch along side the holding tanks and in Game Farm Creek, disclosed excess fecal coliform counts; and that very poor treatment was being afforded the wastewater received at the plant as evidence by high levels of total Kejhdal nitrogen and ammonia, high levels of phosphates, high biochemical oxygen demand, and low levels of nitrates and nitrites.
In July, 1983, in response to a complaint about odors emanating from the plant, the facility was again inspected. This inspector found the aeration tanks anaerobic, effluent had a strong septic odor, the clarifier was cloudy, the chlorine feeder was empty, no chlorine residual in contact tank, final effluent was cloudy, both ponds were covered with duckweed and small pond was discharging in the roadside ditch (Exhibit 14)
Expenses to Petitioner resulting from the inspections intended to bring Respondent in compliance with the requirements for wastewater treatment facilities are $280.32 (Exhibit 9)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, these proceedings.
Section 403.087(1) Florida Statutes, provides in pertinent part:
No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department . . . .
All wastewater treatment facilities may reasonably be expected to be a source of air or water pollution and require the issuance of a permit to operate.
Section 403.088(1), Florida Statutes, provides in pertinent part:
No person, without written authorization of the department, shall discharge into waters within the state any waste which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for them . . . .
Respondent has been discharging waste into Game Farm Creek since shortly after it commenced operations, was discharging into Game Farm Creek when
its TOP was issued in 1980 and has continued to discharge pollutants into this body of water after the expiration of its TOP.
Although Respondent submitted the timetable for connecting to the regional wastewater treatment facility, which schedule was incorporated as a condition of the TOP issued December 5, 1950, Respondent has done nothing to comply with this requirement and has continued to pollute the waters of the state.
Respondent, in his arguments at the hearing, and in documents submitted by him, takes the position that the Fifth Amendment of the U.S. Constitution precludes the state from requiring him to abandon his treatment plant and connect to the regional wastewater treatment facility. This position is partially correct in that the state cannot require Respondent to give away his property. This is not the same as telling Respondent be cannot continue to pollute the waters of the state. This is a valid exercise of the police powers of the state, such action is not arbitrary and capricious and is intended to prevent a public harm. As such this is not a taking of Respondent's property for which he is entitled to compensation under the Fifth Amendment.
As stated by the Florida Supreme Court in Graham v. Estuary Properties, 399 so.2d 1374, at pp. 1330-81:
There is no settled formula for determining when the valid exercise of police powers stop and an impermissible encroachment on private rights begin. Whether a regulation is a valid exercise of police power or a taking depends on the circumstances of each case.
Some of the factors which have been considered are:
whether there is a physical invasion of the property.
The degree to which there is a diminution in value of the property. Or stated another way, whether the regulation precludes all economically reasonable use of the property.
Whether the regulation confers a public benefit or prevents a public harm.
Whether the regulation promotes the health, safety, welfare, or morals of the public.
Whether the regulation is arbitrarily and capriciously applied.
The extent to which the regulation curtails investment backed expectations.
Here, the regulations clearly promote the welfare of the public, prevent a public harm as pollution prevention is a legitimate concern within the police power of the state, and the statute has not been arbitrarily applied. Id. at p. 1381.
Respondent's continued discharge of pollutants into waters of the state will continue so long as the wastewater treatment facility remains in operation, absent drastic action of a type undisclosed at this hearing to stop such discharge.
Since some 125-150 homes are relying on this wastewater treatment facility for treatment and disposition of their household waste, it is
