Judges: DONALD D. CONN
Agency: Department of Environmental Protection
Latest Update: May 02, 1985
Summary: County water utilities department should be permitted to construct septage receiving facility in residential neighborhood due to reasonable assurances.
85-0147.PDF
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KEVIN DONOVAN, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 85-0147
) PALM BEACH COUNTY AND STATE ) OF FLORIDA DEPARTMENT OF )
ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice this case was heard on March 21, 1985, in West Palm Beach before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:
Petitioner: Frank A. Kreidler, Esquire
521 Lake Worth Avenue, Suite 3 Lake Worth, Florida 33460
Respondents: Julia D. Cobb, Esquire
Department of Environmental Regulation 2600 Blairstone Road
Tallahassee, Florida 32301
Thomas C. McEaddy, Jr., Esquire Post Office Box 1989
West Palm Beach, Florida 33402
The Palm Beach National Civic Association, Inc., and several of its members, hereinafter referred to as "Petitioner", oppose the issuance of a permit to the Palm Beach County Water Utilities Department to construct a septage receiving facility. Petitioner alleges that the substantial interests of neighboring homeowners will be adversely affected by the issuance of this permit, and seeks denial of the permit. At the hearing, Petitioner
introduced thirteen exhibits, and Respondents introduced three exhibits. Both parties called Roy Duke, Southeast District Manager with the Department of Environmental Regulation, Robert Weisman, Assistant Director of the Palm Beach County Water Utilities Department, and Umesh Asrani, a Professional Engineer with the Palm Beach County Health Department to testify, and in addition Petitioner called Kevin Donovan, President of the Palm Beach National Civic Association, Inc.
Petitioner was granted leave to late file certified copies of Exhibits 1, 3, and 4 and these certified copies having been filed, they are hereby accepted and substituted in the record. Respondent was also granted leave to late file objections to Petitioner's Exhibit 9, and said objections have been filed. Exhibit 9 purports to be pretreatment standards currently being enforced by Palm Beach County. In its objection to Exhibit 9 Respondent refers to Ordinance No. 1710-03 which is not a part of the record and has not been included with the objection, but which Respondent alleges is the pretreatment standard currently in effect at the City of West Palm Beach's treatment plant. The objections to Petitioner's Exhibit 9 are hereby overruled and this exhibit will remain part of the record in this case since Ordinance No. 1710-83 is not a matter of record and no request for official recognition thereof has been made pursuant to Section 120.61, F.S.
The parties have submitted post hearing proposed findings of fact pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Specifically, Petitioner's proposed findings numbered 1, 2, 5, 6, 9, 11, 13-16, 18-22, 24, 27 and 29-31 are rejected for these reasons, and also because they are not based on competent substantial evidence in the record.
FINDINGS OF FACT
By application dated October 9, 1984, the Palm Beach County Water Utilities Department applied for a permit to construct a temporary septage receiving facility at a location within Palm Beach County known as Sewage Treatment Plant 2S which is adjacent to and immediately north of Petitioner's neighborhood. It was estimated that
this facility would receive between 30,000 and 50,000 gallons of septage each day from septic tanks in Palm Beach County.
The specific operation procedure to be used at the site begins with access to the site from Forest Hill Boulevard, located to the north, using an unpaved, curved roadway. Septage trucks arriving at the site are faced with a potentially dangerous situation since the roadway is very narrow in parts, and is somewhat elevated and they therefore have to be very cautious to avoid accidents.
The arriving trucks back over an asphalt paved area to a transfer box and discharge septage through a
four-inch rubber hose into the transfer box. Septage flows through the transfer port and is distributed over a bar screen. Materials collecting on the bar screen are manually raked onto the drainage place, collected and placed into a dumpster for removal to a landfill. Septage then flows from the transfer box through a twelve inch pipe by gravity into a 120-inch wet well, and is diluted. The septage flows through an 8-inch sewer pipe by gravity into an existing pump station wet well on site. Two pumps then pump the septage into a force main system through which it flows to the West Palm Beach Regional Sewage Plant.
The facility for which this permit is sought is intended to receive septage formerly deposited at Dyer Boulevard landfill septage facilities which has ceased operation under a Consent Order between Palm Beach County and the Department of Environmental Regulation. This is proposed as a receiving and transporting facility only, and not a treatment facility. Roy Duke, the Southeast District Manager with the Department of Environmental Regulation, who was accepted as an expert in environmental permitting, testified that in his opinion the site in question is the best site available to Palm Beach County for such a receiving facility. Due to the need to find a suitable replacement for the Dyer Boulevard site, the Department of Environmental Regulation requested that the County Water Utilities Department submit this application and supports the issuance of the permit.
In accordance with an Operating Agreement between the Palm Beach County Health Department and the Department of Environmental Regulation, the County Health Department has authority to review and issue permits for sewage
collection and transmission systems. Upon receipt of this permit application, the County Health Department requested additional information in the review process, which the County Water Utilities Department provided, in order to determine if "reasonable assurances" were being provided that the receiving facility would not discharge, emit, or cause pollution contrary to applicable standards, rules or regulations. According to Umesh Asrani, a Professional Engineer with the County Health Department, who was accepted as an expert in wastewater treatment technology, and the processing and evaluation of wastewater treatment facility permits, "reasonable assurances" have been given in this permit application.
Testimony at the final hearing establishes that the proposed site has already been put into operation by the County with the approval of the Department of Environmental Regulation due to the emergency need to find an alternative to the Dyer Boulevard site. A temporary injunction was sought against this operation by residents of the area but it was not granted. The current operation of the facility is not challenged in this proceeding, but Petitioner points out that adverse effects on the neighborhood resulting from this operation are relevant to the issuance of the permit sought in this case.
Specifically, Petitioner Kevin Donovan testified that truck traffic and noxious odors have increased since the operation began and would be expected to continue if the permit is granted. He has also seen evidence of spills at the site, and introduced evidence to establish that "sludge" containing commercial wastes and grease was being deposited at the site as well as "septage." Petitioner expressed his concern that hazardous wastes could be deposited at the site. Roy Duke testified that small amounts of hazardous wastes could be disposed of in residential septic tanks and ultimately collected at this site, but that in his opinion this was not a widespread practice, and the amounts would not present a danger to health or the environment.
Petitioner also expressed his fear that the surface and ground water could be contaminated from leaks and spills occurring at the site. Expert witnesses testifying on behalf of Respondents stated that no such discharges were reasonably likely to occur. The greater weight of the evidence supports Respondents' position that
reasonable assurances have been given that dangerous amounts of hazardous wastes will not be deposited at the site, and that surrounding surface and ground waters will not be contaminated by operation of the site.
With the exception of a pH test which is conducted at the site when septage is received to determine its level of acidity, no tests or treatment are performed on the septage at the site. It is simply deposited and transmitted through the sewer system to the West Palm Beach Regional Sewage Plant for testing, treatment, and final disposal. The amount of septage deposited at this site is very small (30,000 to 50,000 gallons per day) in relation to the total amount treated each day at the Regional Sewage Plant (approximately 40 million gallons per day).
Based upon bills of lading for deposits at the site since it was placed in operation, the site is used to receive and collect septage, including grease and sludge, from residences, restaurants, construction sites, digesters, and race tracks.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding pursuant to Section 120.57(1), F.S.
As authorized by Section 403.102, F.S., the Department of Environmental Regulation has approved a local pollution control program in Palm Beach County, and has delegated its permitting authority to that local program. In this case, the Palm Beach County Health Department, through this approval and delegation, has the jurisdiction to issue the permit sought by the Palm Beach County Water Utilities Department.
Rule 17-4.26(1) and (2), Florida Administrative Code, provides:
No person shall operate, maintain, construct, alter, modify, or expand any sewage collection system, sewage disposal system or sewage treatment facility without a current and valid permit from the Department, pursuant to the provision of Chapter 17-6, Florida Administrative Code.
The Department shall deny an application for a permit unless the sewage collection, treatment and disposal system will provide adequate and effective treatment in accordance with the rules and regulations of the Department. (Emphasis supplied)
Rule Chapter 17-6, F.A.C., sets forth the requirements for wastewater facilities, including the substantive design criteria applicable to the proposed septage receiving facility in this case which are found in Rules 17-6.040 and 17-6.050, F.A.C.
The project for which the County Utilities Department has sought a permit meets the specific definition of "collection/transmission system" found in Rule 17-6.030(10), F.A.C. It is a facility used for the collection and transmission of wastewater, including sewage, industrial and other liquid waste from residences, commercial or industrial sites. See also Rules 17- 6.030(81), (82), (83), F.A.C., which define "wastes," "wastewater," and "wastewater facilities," respectively.
According to the expert testimony and other evidence presented, this permit application meets all of the requirements of Chapter 17-6. The record also supports the proposed action taken by the Palm Beach County Health Department, the approved local program, to issue the requested permit since it complies with all relevant provisions of Chapter 403, F.S., and Chapters 17-4 and 17- 6, F.A.C.
The test to be applied in reviewing a permit application such as this is found at Rule 17-4.07(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 pollution in contravention of Department standards or rules. Within 30 days after receipt of a permit application, the Department shall
notify the applicant of any errors or omissions, and request any additional information necessary to properly evaluate the application. After receipt of all required information the Department shall issue or deny the permit within 90 days. (Emphasis supplied)
"Reasonable assurances have been given in this case, according to expert testimony which was not rebutted by any experts called on behalf of Petitioner.
Petitioner contends that Chapter 17-6 does not apply in this case and that Chapter 17-7, Part IV, should have been used as the basis for this application and its review. Chapter 17-7, Part IV, deals with "domestic sludge" which is defined by Rule 17-7.51(9) to mean:
. . . a solid waste resulting from sewage, septage, or food service operations, or any other such waste having similar characteristics. Domestic sludge may be liquid, semisolid, or solid but does not include the treated effluent from a domestic wastewater treatment plant.
"Domestic septage" is also defined by Rule 17-7.51(8) to mean:
. . . all solid wastes containing human feces, or residuals of such, which have not been stabilized or disinfected. Not included are food service sludges and industrial sludges.
It would appear that the materials being collected and transmitted at the proposed site meet both definitions, and that therefore the application of Chapter 17-7 or 17-6 does not depend on the collection of "sludge" or "septage," but rather on the activities proposed to take place at the site.
In enacting Chapter 17-7, Part IV, the Department of Environmental Regulation declared its intent, as follows, in Rule 17-7.50:
. . .it is the intent of the department to re- gulate the management and disposal of domestic
sludges generated by new and existing sources in a manner to assure protection of the environment and public health. The department also intends in this rule to encourage the proper recycling, reuse, treatment, or agricultural use of certain domestic sludges. The department intends to require resource recovery and management facility permits for sludge treatment, storage, and disposal facilities as directed by law.
From this it appears that the activities regulated by Chapter 17-7, Part IV, include the management, disposal, treatment and storage of sludge. Rule 17-7.52 specifies permit requirements and refers only to sludge disposal or land application sites.
Thus, the key distinction between Chapters 17-6 and 17-7, Part IV, is that Chapter 17-6 applies to, and regulates collection and transmission facilities, while Chapter 17-7, Part IV, deals with disposal and land application of sludge. Petitioner is incorrect in his contention that Chapter 17-7, Part IV, applies in this instance because the facility for which the permit is sought is not a disposal or land application site, but rather is a collection/transmission site. Respondents properly proceeded under Chapters 17-4 and 17-6, F.A.C.
Petitioner also contends that serious danger could be posed to the neighborhood and its residents by the activities at this site. Evidence was presented that obnoxious odors have been more noticeable since the site was placed in use, and that truck traffic has increased. This evidence, however, is not determinative when weighed against the expert testimony presented by Respondent that this is the best site in the county that is available for this purpose and that reasonable assurances have been given that pollution will not result from the issuance of this permit.
Finally, Petitioner contends that the access road to the proposed site violates local zoning requirements since the zoning code requires access roads such as this to be twenty-five feet from any drainage canal. No evidence was presented, however, to show that local zoning requirements can or should be considered by Respondents in evaluating this permit application. To the contrary,
expert testimony established the local program does not evaluate zoning and land use questions in the permitting process.
It is well-settled that the "[a]dministrative construction of a statute by an agency . . . responsible for the statute's administration is entitled to great weight and should not be overturned unless clearly erroneous." Pan Am World Airways v. Florida Public Service Commission, 427 So.2d 716, 719 (Fla. 1983). In this case Respondents' construction of the applicable statutes and rules is supported by the great weight of the evidence and therefore, their intent to issue the permit was not clearly erroneous. Not only the general presumption but also the evidence in the record requires that the permit be issued.
RECOMMENDATION
Based upon the foregoing, it is recommended that a Final Order be entered issuing the permit sought by the Palm Beach County Water Utilities Department and denying the relief sought by Petitioner.
DONE and ENTERED this 2nd day of May, 1985, at Tallahassee, Florida.
DONALD D. CONN
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 2nd day of May, 1985.
COPIES FURNISHED:
Frank A. Kreidler, Esquire
521 Lake Worth Avenue Suite 3
Lake Worth, Florida 33460
Julia D. Cobb, Esquire Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, Florida 32301
Thomas C. McEaddy, Jr., Esquire Post Office Box 1989
West Palm Beach, Florida 33402
Victoria Tschinkel, Secretary Department of Environmental
Regulation
Twin Towers Office Building 2600 Blairstone Road
Tallahassee, Florida 32301
Docket for Case No: 85-000147
Orders for Case No: 85-000147
| Issue Date |
Document |
Summary |
|
May 02, 1985 |
Recommended Order
|
County water utilities department should be permitted to construct septage receiving facility in residential neighborhood due to reasonable assurances.
|
