STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRAIG ZABIN, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0358

)

BREVARD COUNTY and STATE )

OF FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

) JUDY RYAN and ROBERT B. SAMPSON, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0449

)

BREVARD COUNTY and STATE )

OF FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above cases by the Division of Administrative Hearings before its duly designated Hearing Officer, DONALD R. ALEXANDER, on March 9, 1984.

APPEARANCES

For Petitioner: Craig Zabin, pro se (Case No.: 84-0358) 35 Florida Boulevard

Merritt Island, Florida 32953

For Petitioners: Judy Ryan, pro se (Case No.: 84-0449) 265 Florida Boulevard

Merritt Island, Florida 32953

Robert B. Sampson, pro se

270 Florida Boulevard

Merritt Island, Florida 32953

For Respondent/ Dennis R. Erdley, Esquire DER: Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent/ Kenneth C. Crooks, Esquire Applicant: Post Office Box 37

Titusville, Florida 32781-0037

This proceeding was initiated when respondent, Department of Environmental Regulation, issued a letter of intent on or about January 11, 1984 to respondent/applicant, Brevard County, advising that it intended to grant an application for a permit to construct a 1.40 MGD design activated sludge wastewater treatment plant (known as the Fortenberry Plant) with chemical additives, a tertiary sand filter, disinfection by chlorination and effluent disposal to a drainage canal and then to Newfound Harbor, all lying within Brevard County, Florida.

On January 20, 1984 petitioner, Craig Zabin, a resident of Merritt Island, Florida, filed a request for a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the issuance of the permit. The matter was referred to the Division of Administrative Hearings by respondent on January 30, 1984 with a request that a Hearing Officer conduct a formal hearing.

Thereafter, a petition for formal hearing was filed on behalf of the Committee to Save Sykes Creek on January 31, 1984 contesting the same permit. This too was forwarded to the Division of Administrative Hearings on February 8, 1984. An amended petition was later filed without objection on March 7, 1984.

The matters were consolidated for hearing purposes and a notice of hearing was issued on February 22, 1984 scheduling a final hearing on March 9, 1984 in Merritt Island, Florida.

At the outset of the final hearing, Judy Ryan and Robert B. Sampson, both non-lawyers and members of the Committee to Save Sykes Creek, opted to represent themselves individually as objecting petitioners rather than he examined as to the criteria specified in the qualified representative rule, Rule 28-5.1055, Florida Administrative Code. In this regard, they adopted as their own the allegations of the amended petition filed by the Committee to Save Sykes Creek.

At the final hearing, petitioners Craig Zabin and Robert Sampson testified on their own behalf. Zabin offered exhibits 1-3; all were received in evidence. Sampson offered exhibits A-L which were received in evidence. Ryan offered exhibits 1 and 2; both were received in evidence. Respondent DER presented the testimony of William M. Bostwick, Jr., DER district engineer, and offered DER exhibits 1-6; all were received in evidence. Respondent/applicant presented the testimony of E. Alan Stewart, III, a sanitary engineer, Richard Martens, acting utilities director for the County, James D. Stevenson, County director of environmental engineering, and Charles A. Striffler, County environmental services coordinator, and offered County exhibits 1-4; all were received in evidence.

There was no transcript of hearing. Proposed findings of fact and conclusions of law were filed by DER on March 21, 1984 1/ and by the petitioners on March 24 and 28, 1984 and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether a Permit should be issued to Brevard County authorizing the construction of certain modifications to its Fortenberry wastewater treatment and disposal plant in Merritt Island, Florida.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On September 16, 1983, respondent/applicant, Brevard County (County), filed an application for a permit with respondent, Department of Environmental Regulation (DER), seeking authorization to modify and expand its Fortenberry Road wastewater treatment plant from 0.80 million gallons per day (MGD) to 1.40 MGD, which is designed to provide treatment necessary to meet effluent limits based on receiving water quality. The facility is located on Fortenberry Road in Merrit Island, Florida, and is classified as a Class B, Level II treatment plant.

   
   

2. On October 14, 1983, DER acknowledged receipt of the application, plans and related material and requested certain additional items to be filed within

   30 days. These items were subsequently submitted by the County.

   
   

3. On or about January 11, 1984 DER issued its proposed agency action in the form of a draft permit wherein it gave notice that it intended to issue Permit/Certification No. DC0S-75483 and authorize the proposed activity subject to fifteen general and ten specific conditions. These are set forth in detail in the draft permit which has been received in evidence as DER Exhibit 2. Generally, the permit would authorize the County to construct ". . .a 1.40 MGD design activated sludge wastewater treatment plant with chemical additives, a tertiary sand filter, disinfection by chlorination and effluent disposal to a drainage canal and thence to Newfound Harbor." The permit will expire on July 15, 1985.

   
   

4. On January 18, 1984, notice of intended agency action to issue the permit was published by the County in Today, a newspaper publication in Brevard County. Upon reading that notice, petitioners, Craig Zabin, Judy Ryan and Robert B. Sampson, all homeowners in Merritt Island, filed petitions requesting a hearing to contest the permit. In their petitions, petitioners generally contended the proposed construction would result in the discharge of effluent containing toxic substances into an Outstanding Florida Water (Newfound Harbor) in violation of Rule 17-4.242, Florida Administrative Code, that the plant has no operating permit, that the plant has violated "discharge standards" for the last three years, and that the plant's present discharge is harmful to human health and aquatic life in violation of various DER rules.

   
   

5. The draft permit indicates that the plant effluent will continue to be discharged into a ditch which eventually intersects Newfound Harbor. At that point the Harbor waters are classified as Class III waters within the meaning of Chapter 17-3, Florida Administrative Code. A portion of the Harbor, well to the south of the discharge point, is classified as an Outstanding Florida Water. Uncontradicted expert testimony established that the discharge would not have an impact that was technically measurable on the portion of Newfound Harbor classified as an Outstanding Florida Water.

   
   

6. At the present time the County has no valid temporary operating permit (TOP) or operation permit authorizing the operation of the Fortenberry Plant. Although the County applied for such a permit, DER has issued a notice of intent to deny the most recent application for a TOP and that case remains pending before the Division of Administrative Hearings (Case No. 82-2850)

7. According to Specific Condition No. 9 of the draft permit, the County must meet the following flow requirements:

   
   

   9. Initial flows shall be limited to

   1.0 MGD. Additional flows, in the 0.10 MGD increments, may be authorized upon receipt of written assurance from the permittee,

   based on actual test data, that the treatment plant will achieve the required level of treatment at such higher flows.

   
   

   Therefore, upon completion of construction activities, the County will be authorized a maximum flow of 1.0 MGD at the facility which is a 0.20 MGD increase over the most recently expired TOP. This approximates the current average flows of almost 1.0 MGD. Additional increases, in increments of 0.10 MGD, may be earned by the County by demonstrating with test data that the plant will continue to comply with the effluent limitations established by Specific Condition No. 10 of the draft permit. 2/ The latter limitations are based on a waste load allocation study that was completed in the late 1970s. The draft permit does not increase the allocation of the plant--rather the limits are the same that were formulated when the waste load study was originally completed.

   
   

8. The existing facility consistently violates the limits of its allocated waste load. Construction of the additional treatment systems should bring the effluent from this plant into compliance with its waste load allocation. The amount of nitrogen, phosphorus and total suspended solids contributed to Newfound Harbor will be significantly reduced if the additional treatment facilities are constructed. Failure to improve and expand the existing facility will result in the plant continuing to contribute the same poor quality effluent to the waters of Newfound Harbor.

   
   

9. Testing by the Department and the County has revealed the presence of high levels of lindane and malathion in the plant's effluent. These substances are spawned by insecticides and are highly toxic to aquatic organisms and invertebrates. Despite considerable investigation by the County, the source of these toxic chemicals is not known. The County is now a party to an enforcement action instituted by the Department on February 28, 1983, and it is in that proceeding, rather than the case at bar, that the appropriate steps to rid the effluent of these prohibitively high levels of malathion and lindane should be determined. In this regard, the Department has represented that it will take all reasonable steps in the enforcement action to insure that the toxic chemicals are eliminated or reduced to tolerable levels by the County, including the requirement that specially designed improvements be made to the plant. 3/ This action should be completed at the very earliest possible date since additional flows from the plant may be authorized at a later date thereby increasing the amount of toxic chemical discharge assuming all other variables remain constant. While the petitioners' concerns about the chemicals are well- founded and legitimate, the issuance of the permit should not be delayed since the plant is currently violating its wastewater load allocation and polluting the waters of Newfound Harbor.

   
   

10. The applicant has provided reasonable assurance that the proposed construction would comply with the standards of Chapter 17-6, Florida Administrative Code, and not emit or cause pollution in contravention of Department standards or rules. Such assurances were not controverted by petitioners.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

12. Initially, an objection by petitioners Ryan and Sampson that fourteen days' notice was not given must be rejected. The notice of hearing was dated and served on February 22, 1984, and scheduled the final hearing fifteen days thereafter on March 9, 1984. The law is well settled that notice of an administrative hearing is complete upon mailing rather than upon receipt. Miami Dolphins, Ltd. v. Florida Department of Commerce, 252 So.2d 396, 397 (Fla. 3d DCA 1971). Therefore, the fourteen-day requirement in Subsection 120.57(1) (b)2., Florida Statutes, has been met.

    
    

13. Rule 17-4.07(1), Florida Administrative Code, provides in pertinent part as follows:

    
    

    A permit may be issued to the applicant. . . only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information,

    that the construction, expansion, modification. . will not discharge, emit, or cause pollution

    in contravention of Department standards, rules or regulations.

    
    

    It is concluded that the applicant herein has provided reasonable assurance that the proposed improvements to the Fortenberry Plant will comply with the standards and requirements of Chapter 17-6, Florida Administrative Code, and not discharge, emit, or cause pollution in contravention of Department standards or rules. It is further concluded that the existing problem with malathion and lindane will not be eliminated or alleviated by the proposed improvements; rather, such will occur only by determining the source of the contaminants or by adding improvements to the system. This should be immediately accomplished in the enforcement action. It is finally concluded that the construction of the improvements authorized by the permit should not be delayed since the Fortenberry Plant is currently violating its waste load allocation and polluting the waters of Newfound Harbor.

    
    

14. Petitioners' concerns are legitimate and well intended. They are local citizens who are sincerely interested in preserving the quality of their environment, and in seeing that the applicant complies with all requirements in the operation of its plant. Because of the maze of Federal and state proceedings which surround the plant in question, and which seem to overlap, it is understandable that they are frustrated in getting their views effectively aired. However, their contentions are either beyond the scope of this proceeding, 4/ Council of the Lower Keys v. Charley Toppino and Sons, Inc.,

429 so.2d 67, 68 (Fla. 3d DCA 1983), or are not supported by the evidence. 5/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be issued to Brevard County for its Fortenberry

Plant in accordance with the terms and conditions of the draft permit.

DONE and ENTERED this 4th day of April, 1984, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 7th day of April, 1984.

ENDNOTES

1/ In a letter dated March 23, 1984 the County adopted as its own the proposed findings of fact and conclusions of law filed by DER.

2/ Should the County fail to comply with the effluent limitations in the permit, then obviously no additional flows above the present 1.0 MGD will be allowed.

3/ The cost of making such improvements was not disclosed; however, the consensus seemed to be that they would be highly expensive.

4/ For example, some are the subject of the TOP proceeding, the enforcement action, or involve alleged violations of federal law. Others involve the decision-making discretion of the local government.

5/ The Outstanding Florida Water issue is one such example.

COPIES FURNISHED:

Craig Zabin

35 Florida Boulevard

Merritt Island, Florida 32953

Judy Ryan

265 Florida Boulevard

Merritt Island, Florida 32953

Robert B. Sampson

270 Florida Boulevard

Merritt Island, Florida 32953

Kenneth C. Crooks, Post Office Box 37

Titusville, Florida 32781-0037

Victoria Tschinkel, Secretary Department of Environmental Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Dennis R. Erdley, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 84-000358

Orders for Case No: 84-000358