STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IZAAK WALTON LEAGUE OF AMERICA, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1353

) BREVARD COUNTY and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on September 27, 1983, in Titusville, Florida.

Petitioner Izaak Walton League of America was represented by Jeanne Whiteside, Merritt Island, Florida; Respondent Brevard County was represented by Kenneth C. Crooks, Esquire, Titusville, Florida; and Respondent Department of Environmental Regulation was represented by Dennis R. Erdley, Esquire, Tallahassee, Florida.

Brevard County (herein after Brevard") filed an application with the State of Florida, Department of Environmental Regulation (hereinafter "Department') for a permit to construct a Class I exploratory injection well. After the Department issued its notice of intent to grant the permit application, the Izaak Walton League of America, Space Coast Chapter (hereinafter Petitioner) , requested a formal administrative hearing on the issuance of the permit.

Accordingly, the issue for determination is whether the Department should grant Brevard's application and issue the permit in question.

At the formal hearing, Brevard presented the testimony of Dr. Eugene Kazmierczak, Robert Massarelli, Porter C. Knowles, William M. Bostwick, Jr., and Mark R. Stephens. The Department also presented the testimony of William M. Bostwick, Jr. The Petitioner presented the testimony of Dr. Roman K. Johns, James M. Frazee, Jr., Joyce Wiliford, Patricia Cole-Blaha, Mildred Kent, and George Bayne. Additionally, Petitioner's Exhibits numbered 1 through 6; the Department's Exhibits numbered 1a, 1b, 2, 3a, 3b, and 4 through 8; and Brevard's Exhibits numbered 1 through 6 were admitted in evidence.

Only Petitioner and the Department submitted posthearing proposed findings of fact in the form of a proposed recommended order, with Brevard adopting the Department's proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Brevard applied for a permit to construct a Class I exploratory injection well at the site of the existing South Beaches Domestic Wastewater Treatment Plant, located on U.S. Highway A1A, one mile south of Melbourne Beach, Florida. The exploratory injection well is required to determine if the hydrologic characteristics of the Melbourne Beach area are suitable for deep well disposal of treated domestic waste water. The application proposes that an exploratory well be constructed to meet the Class I standard of Chapter 17-28, Florida Administrative Code, so that it can ultimately be used as a Class I injection well if the required testing indicates the hydrologic formations of the area are suitable for deep well disposal of treated domestic effluent. It is anticipated that a suitable zone for injection bay be found at approximately 3,000 feet below ground level.

   
   

2. The conditions required by the Department for issuance of a construction permit would not authorize testing or operation of the well. Once the well is constructed, further approval from the Department is required prior to testing. If the Department authorizes testing, the well will he tested with water from the Indian River. If the test results are favorable, Brevard must then apply for an operation permit authorizing injection of treated effluent. Further Department review will occur prior to issuance of an operation permit.

   
   

3. The evidence presented by Brevard and the Department establishes that the design specifications for the exploratory well satisfy the appropriate standards for a Class I exploratory well.

   
   

4. The Amended Petition for Hearing raised a number of concerns which were adequately addressed by Brevard and the Department:

   
   

   1. The Petitioner failed to establish that the documents comprising the application contain false and mis- leading information.

   2. The maps and photographs submitted by Brevard adequately depict exist-

      ing residences, roads, public water systems and water wells. Although well #061 does not appear in the list of owners on the well inven- tory, it clearly appears next to that list on the actual map showing wells within the area of study.

      Such a clerical error does not draw into question the integrity of Brevard's data.

   3. The purpose of constructing and then testing an exploratory well

      is to determine if the hydrologic environment is suitable for deep well disposal of treated domestic waste water; obviously, it is impossible for Brevard to demon- strate the feasibility of deep well injection until the required testing has been completed.

   4. The application and accompanying

      documents adequately address the design specifications and life expectancy of the proposed well.

   5. The application and special conditions of the Department's draft permit provide sufficiently for monitoring during the con- struction and any later testing of the well.

   6. The application and the Department's draft permit adequately address

      the possibility of fluid discharge to surface and ground waters during construction and any

      later testing of the well.

   7. Existing knowledge of the geologic formations in the Brevard County

      area makes it extremely unlikely that construction and testing of the well could cause an earthquake) Deep well disposal of domestic effluent has been utilized in

      South Florida for years and has not yet caused an earthquake. No credible evidence was presented by the Petitioner to indicate that an earthquake could result

      from deep well injection activities in Brevard County.

      
      

5. It is important to note that the design specifications and conditions of Brevard's proposal were reviewed and negotiated with the Technical Advisory Committee over a period of many months. Appropriate technical staff from the Department's St. Johns River District office, Brevard County, the St. Johns River Water Management District, and the United States Environmental Protection Agency participated on that Committee.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Bearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

7. Pursuant to Sections 403.061, 403.087 and 403.088, Florida Statutes, Brevard is required to obtain a permit from the Department for its proposed activities.

   
   

8. In licensing or permitting proceedings, the applicant has the burden of establishing entitlement to the requested license or permit. Further, Department rules place the burden on the applicant to demonstrate compliance with Department standards. Rule 17-4.07(1), Florida Administrative Code, provides, in part, as follows:

   
   

   (1) A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the

   Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modification, operation,

   or activity of the installation will not discharge, emit, or cause pollu- tion in contravention of Department standards, rules or regulations.

   
   

9. Brevard has provided reasonable assurance that the proposed Class I exploratory well will be constructed and tested in accordance with the appropriate standards of Chapter 17-28, Florida Administrative Code, and Chapter 403, Florida Statutes, and will not discharge, emit, or cause pollution in contravention of Department standards, rules, or regulations.

   
   

10. Essentially, the thrust of Petitioner's objection to the Department's issuance of the subject permit is that Peti- tioner disagrees with. Brevard's choice of systems and with Brevard's expenditure of funds for the construction of the exploratory well Those objections are not matters to be considered by the Department in exercising its permitting jurisdiction but rather are matters only cognizable at the local level between Brevard County and its citizens and taxpayers. Petitioner having failed to prove any of its allegations, and Brevard having proven its compliance with the Department's statutes and rules, Brevard's application for a permit to construct the exploratory injection well should be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered issuing a permit to Brevard

County to construct the Class I exploratory well proposed in its application.

DONE and RECOMMENDED this 22nd day of November, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 22nd day of November, 1983.

COPIES FURNISHED:

Jeanne Whiteside

10520 South Tropical Trail Merritt Island, Florida 32952

Kenneth C. Crooks, Esquire Post Office Pox 37

Titusville, Florida 32781-0037

Dennis R. Erdley, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2660 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 83-001353

Orders for Case No: 83-001353