STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK AND MARY WAGONER, )

)

Petitioners, )

)

vs. ) Case No. 85-2257

) FLORIDA MEDICAL FACILITIES AND ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

) LYLE A. AND MARY E. NYGAARD, )

)

Petitioners, )

)

vs. )

) Case No. 85-2258 FLORIDA MEDICAL FACILITIES AND )

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer on September 23, 1985 in Venice, Florida. The appearances were as follows:

APPEARANCES

For Petitioner Nygaard:

For Petitioner Wagoner:

Lyle and Mary E. Nygaard, pro se. 740 Morningside Drive

Englewood, Florida 33533

Harlan Domber, Esquire ISPHORDING, PAYNE, KORP

and MUIRHEAD, P.A.

333 West Miami Avenue Venice, Florida 33595

For Applicant/Co-Respondent Florida Medical Facilities:

James H. Burgess, Jr., Esquire SYPRETT, MESHAD, RESNICK and

LIEF, P.A.

Post Office Box 1238 Sarasota, Florida 33578

For Co-Respondent Department of Environmental Regulation:

Douglas L. MacLaughlin, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

On May 16, 1985, the Co-Respondent Florida Medical Facilities, Inc., applied to the Department of Environmental Regulation (Department) for a permit authorizing it to construct a 50,000 gallon per day extended aeration wastewater treatment and disposal system to serve the Englewood Hospital and Medical Center located south of Morningside Drive in Englewood, Sarasota County, Florida. The Department noticed its intent to issue the sought permit and the Petitioners herein filed timely petitions for formal administrative proceedings to litigate their objections to the proposed project. The cause ultimately came on for hearing as noticed.

In the course of the hearing, the Applicant/Co-Respondent presented two witnesses and three exhibits, all of which were admitted into evidence. The Co-Respondent Department presented two witnesses, and the Petitioners presented three witnesses and five exhibits. All five exhibits were admitted into evidence, but Petitioner's Exhibits 1 and 2 were admitted as corroborative hearsay only as provided for-in Section 120.58, Florida Statutes, (1983).

The parties elected to order a transcript of the proceedings at the conclusion of the hearing, however, no transcript has been forthcoming. The parties filed proposed findings of fact and conclusions of law. Consequently, this Recommended Order is entered based upon the testimony and evidence adduced at hearing as noted by the Hearing Officer and with consideration of all pleadings filed by the parties. The proposed findings of fact and conclusions of law are addressed in this Recommended Order and additionally, are specifically addressed in the Appendix attached hereto and incorporated by reference herein.

The issue to be resolved in this proceeding concerns whether the treatment plant and disposal field for which the subject permit is sought has been reasonably assured to comply, in its design, construction and operation, with the various water quality and waste disposal parameters and requirements embodied in Chapters 17-3, 17-4 and 17-6, Florida Administrative Code, and consequently, whether the requested permit should be issued.

FINDINGS OF FACT

1. The permit Applicant and Co-Respondent, Florida Medical Facilities, Inc. is the owner and developer of a 60-acre tract of land upon which it has constructed a hospital and will construct various attendant laboratories, medical offices and the like. Additionally, the Applicant is the owner of approximately five acres of land adjacent to its original 60-acre site which lies on Morningside Drive in Englewood, Sarasota County, Florida. The Applicant proposes to construct and operate the wastewater treatment plant on that 5-acre parcel. The Applicant proposes to construct an extended aeration wastewater treatment plant and effluent disposal drain field system which will accommodate and dispose of all wastewater effluent on the site by the absorption bed, land application method. The proposed sewage treatment plant will have an average daily design flow capacity of 50,000 gallons per day. The anticipated peak flow of the treatment plant will be 60,000 gallons per day. The plant will generate and dispose of approximately 900 gallons of waste sludge on a daily basis. The facility would employ dual drain fields, use of which would be rotated on a weekly basis. The proposed average hydraulic loading rate would be 3.21 inches per day or two gallons per day, per square foot of drain field. The proposed facility will serve a 100-bed community hospital, assorted medical offices, a diagnostic laboratory and a 75-bed nursing home. The permit applicant has agreed and stipulated that chemical, nuclear and other hazardous and noxious waste materials, blood, body parts, medicines, and drugs will not be introduced into the sewage treatment system plant or drain fields.

2. The Applicant (FMF) originally proposed to dispose of sewage effluent emanating from its hospital and other facilities by transmission of it through force-mains to existing public wastewater systems, one of which is in Charlotte County and the other in Sarasota County. After exploring these possibilities, these alternatives proved to be either too expensive or to involve transmission of effluent over too great a distance to make these options feasible.

   
   

3. Sarasota County has a local pollution control program approved by the DER, pursuant to Section 403.182, Florida

   Statutes. Under this program the Sarasota Environmental Service Department reviews domestic wastewater treatment facility permit applications pending before the DER and makes recommendations on their disposition. The county's ordinance concerning such facilities is equivalent to the DER standards, except in some respects it is stricter Mr. Russell Klier of the county environmental services department established that the proposed project as planned and designed, will comply with county ordinances regarding wastewater treatment plants. Indeed, it was established through Mr. Klier's testimony, that the proposed project has more redundancy and reliability safeguards than any other such project presently operating in Sarasota County. The proposed sewage treatment plant and disposal system is designed to attain the secondary level of treatment required by Chapter

   17-6.060, Florida Administrative Code. The effluent disposal

   system will provide for disposal of effluent in an absorption field system as envisioned by Chapter 17-6.040(4)(M), Florida Administrative Code and the Department's "Land Application Manual," incorporated by reference in that rule. The system, as proposed, will have the additional safeguards required by the "Land Application Manual" in order to attain "Class I reliability."

   
   

4. The hospital, which is the initial facility to be constructed on the 60-acre site, is largely completed, and is being served by a temporary "package" sewage treatment plant until the permit application is resolved. The package sewage treatment plant, as well as the proposed plant and drain field land application system will only serve the medical center complex. All on-site stormwater and surface water run-off from both the 60-acre original medical center site, as well as the 5- acre proposed sewage treatment plant and disposal site, will be managed by directing stormwater and surface water run-off to holding ponds to be constructed and maintained on the original 60-acre site.

   
   

5. Steven Houghton was accepted as an expert engineering witness. It was thus established that the system as designed will meet all water quality parameters regulated and enforced by the DER and Sarasota County in terms of the quality of the effluent generated by the plant and disposal system for disposal by land application. In this connection, he established that no nuclear, infectious, toxic or noxious waste will be processed by the system or introduced into the system nothing other than domestic-type sewage will be treated, processed and disposed of by the proposed system.

   
   

6. Mr. Houghton acknowledged that the project will be located in an historically flood-prone vicinity, but that will not affect the quality or effectiveness of the operation of the

   plant nor the safe disposal of the resulting effluent. In that regard, the Applicant will place fill at the drain field site so as to provide a more effective soil percolation condition than that presently existing in the soils at the drain field site.

   Additionally, the Applicant will provide a sewage storage tank to provide extra reliability and avoidance of pollution caused by sewage overflows in the event of any excessive sewage flows into the plant, and as a safeguard against disposing of insufficiently treated effluent during periods of high rain and high surface or ground water conditions. Additionally, the system will be constructed and operated with sufficient redundancy of electrical and mechanical components so as to provide auxiliary capacity throughout the system, allowing it to operate efficiently 24 hours a day and to continue to provide treatment and disposal of the effluent in accordance with secondary treatment and Class I reliability standards, even during periods of mechanical or electrical outages.

   
   

7. Petitioner Mary Wagoner owns and resides on acreage generally south and adjacent to the proposed project site. Mrs. Wagoner uses a potable water well in the shallow aquifer with a depth of approximately 35 feet. Mrs. Wagoner's well has recently been tested and at this time provides good, safe, potable water which she uses both for drinking, cooking, domestic usage, as well as water for her livestock. Mrs. Wagoner's well is less than 500 feet from the proposed "wetted area" of the drain field land application disposal site.

   
   

8. Mr. Edward Snipes was accepted and testified as an expert witness in the areas of engineering and wastewater engineering on behalf of the Department. He corroborated Mr. Houghton's testimony in establishing that the project would meet the Department's standards for water quality and Class I reliability in large part. It was shown that the project will not likely have harmful effects on the Petitioners' water wells. Mr. Snipes established that the Department's "Land Application Manual" embodied in Rule 17-6.04(4)(Q), Florida Administrative Code requires a buffer zone of only 100 feet, instead of 500C feet, from the wetted area of the sewage effluent disposal site, due to the type of system and level of treatment proposed. That is, the system would provide secondary treatment, with additional safety measures incorporated in the design and operation so as to achieve Class I reliability. This Class I reliability standard includes a sufficiently high rate of disinfection so as to allow unrestricted public access to the site, and thus would meet the most stringent Class I reliability standards extant in Rule 17- 6.040(4)(M), Florida Administrative Code. This permits a reduced buffer zone between the wetted area of the drain field and any adjacent, shallow-water wells. Thus, the buffer zone would, in

   the case of this plant, be allowably reduced from 500 feet to 100 feet.

9. In only one respect, was any doubt cast by Petitioner's testimony and evidence on the showing of reasonable assurances that all Department water quality and wastewater treatment standards will be met. That doubt concerns the distance from the bottom of the drain field to the water table elevation at the drain field site, as that relates to the ability of the system to continue to treat and dispose of effluent within appropriate standards in this admittedly flood-prone area, as that problem would in turn relate to potential contamination of ground water in the area, especially in times of high rainfall and high ground water levels.

   
   

10. In that connection, Petitioner Wagoner offered Herman Weinberg as an expert witness in civil engineering and he was accepted. Mr. Weinberg acknowledged that he was not a soil engineer and acknowledged that the Department or its witnesses were more knowledgeable about wastewater regulation, treatment and disposal methods than he. He opined, however, that the plant may not be able to reach Class I reliability due to its location in a flood-prone area. He fears that insufficient soil testing and water quality testing had been done prior to the filing of the permit application. and prior to the ultimate construction of the project, if that is to be the case.

    
    

11. Section 17-6.040(4) (M), Florida Administrative Code, adopts by reference the United States Environmental Protection Agency design criteria for mechanical, electrical and fluid system and component reliability manual. That manual sets forth certain minimum standards for Class I reliability sewage treatment and disposal plants and systems. In this regard, the rule in that manual establishes that wastewater treatment works include holding ponds and basins and other structures of the disposal system. It provides that all treatment works, structures, as well as electrical and mechanical equipment, shall be protected from physical damage by flooding of a magnitude occurring on the average of once in a hundred years, the so- called "100-year flood." In this connection, it was established through witness Weinberg's testimony as well as that of Mr. Houghton, the Applicant/Respondent's witness, that the 100-year flood plan elevation on and around the subject site is 12 feet above mean sea level. The top of the proposed drain field would be located at 12.33 feet elevation. The bottom of the drain field would be at 10.33 feet elevation. The water table level established by witness Houghton as a result of his survey and calculations, is at 8.33 feet elevation. The Department of Environmental Regulation, in its "Land Application Manual," which provides criteria for sewage plant and disposal system construction and operation, requires a 36-inch minimum separation

    between the bottom of a drain field and the design water table level. Thus, the legally operative Class I reliability standards, incorporated in the above-referenced rule and manuals, and which the Applicant and the Department agree is the level of reliability required, given the conditions and the proximity of Petitioner's well, can only be met if the drain field disposal system is at this required elevation of 36 inches above the design water table level. Affirmative, reasonable assurances that this safeguard will be incorporated in the subject system are necessary in view of the fact that Petitioner Wagoner's potable water well is clearly less than 500 feet from the wetted area of the drain field site.

    
    

12. In this connection, the Applicant/Respondent has proposed placing fill soil of a suitable type for adequate percolation and land application treatment of the effluent on the drain field site, however, it has not been established that this will be done to such an extent as to raise the elevation of the drain field sufficiently so that the bottom of the drain field is a minimum of 36 inches above the design water table. The installation of an adequate depth of fill soil of a suitable percolation characteristic must therefore be a condition on the issuance of the permit.

    
    

13. Further, in that regard, the Applicant/Respondent's soil test and calculation of tile ground water level or "design water table," occurred in January and February of 1985, at a time when the southwest region of Florida was in a drought or dry condition, such that the water level or ground water table at normal rainfall conditions would likely be at a higher elevation. Thus, a grant of this permit must be conditioned upon the installation of sufficient, appropriate quality fill soil to ensure that the minimum 36-inch separation between the drain field bottom and the water table is maintained during normal water table or rainfall conditions. If this measure is not taken, given the 2-foot separation between the drain field, as designed, and the water table, the oxygen transferring capacity of the soil beneath the drain field may not be sufficient to satisfy the oxygen demand required for consistently adequate treatment and safe disposal of the sewage effluent.

    
    

14. Additionally, in this same context, Chapter 1 of the DER Land Application Manual at Section 1.3, requires that sufficient storage capacity exist on-site to ensure retention of sewage effluent during conditions which preclude land application, such as high ground water conditions or flooding conditions. This capacity should be equivalent to three days maximum daily flow at the design capacity of the plant, or in this case, 180,000 gallons. Although the Applicant, by its plans and specifications in evidence, has assured that a sewage

    effluent storage tank will be constructed and operated, it has failed to establish that sufficient storage capacity will be incorporated to assure the retention of 180,000 gallons of effluent. Any grant of the permit application should be conditioned upon such an assurance.

    
    

15. Finally, in connection with the above-mentioned condition concerning installation of sufficient, appropriate soil filling to allow for a minimum 36-inch amount of unsaturated soil beneath the drain field, that addition of fill should also be of a sufficient type and amount to ensure that the Applicant's proposed rotation or "resting" of drain fields for 7-day periods will be adequate to ensure that the subject amount of soil is unsaturated before re-use of either of the two drain fields. There should be incorporated in these conditions, upon a grant of the permit, the requirement that the Department monitor construction of the proposed facility to ensure that the above conditions are adequately met, in view of the low-lying terrain at the drain field site and the flood-prone condition of that locality.

    
    

16. Petitioner Mary Nygaard testified on behalf of herself and her husband, Lyle A. Nygaard. Mrs. Nygaard complains of feared pollution of her shallow-water potable well which she maintains is within 500 feet of the drain field and sewage plant site. Mr. Nygeard established that the well is 187.1 feet from the Petitioner's southern property boundary, but acknowledged that no survey has been done delineating the distance to the proposed wetted area of the drain field. It was not otherwise proven how far the Nygaard's potable well is from the wetted area of the proposed drain field where the effluent will be disposed of. Various easements and roadways lie between the Nygaard's well and the wetted area of the proposed drain field site with indeterminate dimensions, thus it was not proven what distance exists between the Nygaard's well and the drain field site other than that it exceeds 187.1 feet.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

18. The Department of Environmental Regulation has permitting jurisdiction over projects of this type pursuant to Section 403.087(1), Florida Statutes, and Sections 17-4.03, 17- 4.07, 17-4.21, 17-4.26(1), Florida Administrative Code, and Sections 17-3.402, 17-3.404, 17-6.140(1) and 17-6.150, Florida Administrative Code.

19. The parties seeking issuance of a permit from the Department for a project such as that involved herein must, pursuant to Section 403.087, Florida Statutes, provide reasonable assurances that the proposed project will not violate water quality standards contained in Chapter 17-3, Florida Administrative Code, and that it will also meet the requirements of Chapter 17-4 and 17-6, Florida Administrative Code. Section 17-3.402 Florida Administrative Code contains the general criteria for Class G II potable groundwaters, which is that involved in this proceeding. That rule requires:

    
    

    1. All ground water shall at all places and at all times be free from domestic, industrial, agricultural, or other man- induced non-thermal components of discharges in concentrations which, alone or in combination with other substances, or components of discharges (whether thermal or non-thermal):

       
       

       1. Are harmful to plants, animals, or organisms that are native to the soil and responsible for treatment or stabilization of the discharge relied upon by Department permits; or

          
          

          * * *

          
          

          (d) Pose a serious danger to the public health, safety or welfare or

          
          

          * * *

          
          

          (f) Impair the reasonable and beneficial use of adjacent waters.

          
          

20. Rule 17-4.07, in turn, provides the general standard for issuance or denial of permits, providing:

    
    

    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 upon 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.

21. Rule 17-6.060 provides standards and criteria for sewage effluent, disposed of in various ways, as follows:

    
    

    Effluent Limitations. The waste treatment standards contained in this rule generally shall be met before discharge into holding ponds (if applicable), disposal systems, or surface waters classified pursuant to Chapter 17-3, F.A.C. Waste treatment, at a minimum, shall consist of secondary treatment and, to the extent necessary, disinfection and pH control. Additional levels of treatment (beyond secondary) may be required pursuant to provisions contained in this rule as well as in Rule 17-6.080. These design/performance standards shall be enforceable pursuant to the operational compliance criteria in Rule 17-6.180.

    General technical guidance is provided by

    references listed under Rule 17-6.040. Discharges which would not result, at a minimum, in the protection of surface and ground water quality criteria shall not be allowed. Effluent limitations shall be achieved at the appropriate locations specified pursuant to both this rule and Rule 17-6.080.

    
    

22. That rule then provides, concerning domestic wastewater facilities such as the one herein, as follows:

    
    

    1. Secondary Treatment

       
       

       1. Surface water disposal (excluding ocean outfalls.)

       
       

       All domestic wastewater facilities are required, at a minimum, to provide secondary treatment of wastewater. New facilities and modifications of existing facilities shall be designed to achieve an effluent after disinfection containing not more than 20 mg/1 BOD and 20 mg/1 TSS, or 90% removal of each of these pollutants from the wastewater influent, whichever is more stringent. All facilities shall be operated to achieve, at a minimum, the specified effluent limitations (20 mg/1). All facilities, whether new or existing, shall be subject to provisions of

       Rule 17-6.010(5), regarding the applicability of the above requirement, and Rule 17-6.160, and Rule 17-6.180 regarding compliance with the above requirements. Appropriate disinfection and pH control of effluents shall also be required.

       
       

       * * *

       
       

       1. Land application or groundwater disposal (excluding underground injection.)

          
          

          1. The secondary treatment criteria specified in subsection (l)(a)l., above, at a minimum, generally are applicable as preapplication waste treatment requirements for all facilities, whether new or existing. The design for more stringent levels of treatment may be required by the department as a result of the method of effluent application/ distribution; the extent of intended public access the characteristics of the potential receiving surface waters (i.e., whether overland flow runoff or application site under drainage is involved) or groundwater protection pursuant to effluent disposal provisions of Rule 17-6.080(3).

       
       

       In this connection, the Department in its review process has required more stringent levels of treatment for this facility and the applicant has agreed on the record to provide the same in the form of assuring "Class I reliability" as described in Rule 17- 6.040(4)(m). That rule references the U.S. Environmental Protection Agency, 1974 Design Criteria Manual for such systems which in turn, contains the Class I reliability standards. Those criteria, stated in summary fashion, involve comprehensive backup and redundant mechanical and electrical systems to assure safe

       24-hour, 7-day per week operation of such sewer plant disposal systems without breakdowns and outages, in addition to the requirement that on-site storage capacity be sufficient to ensure that final effluent disposal does not violate appropriate water quality standards during such outages, breakdowns or high floodwater levels. The Class I reliability standards include, as pertinent hereto, treatment and disinfection sufficient to allow safe, unrestricted public access to the sewage treatment plant and disposal site, which the applicant has agreed to provide in this instance.

23. Rule 17-6.080 contains the effluent disposal limitations applicable to this proceeding at Subsection (3) "Land

    Application." That provision provides at (a):

    
    

    The following requirements are applicable for slow-rate, rapid-rate, overland flow, absorption field and other land application systems potentially discharging to Class G-II groundwaters as described in Chapter 17-3,

    F.A.C. . . .

    
    

    1. Systems shall be designed to meet applicable requirements contained in Rule 17- 6.040(4)(q). Minimum design waste treatment standards specified in subsection (c) below are described in Rule 17-6.060 and shall be enforceable pursuant to the operational criteria in Rule 17-6.180.

    
    

24. That rule goes on to provide that in addition to the effluent treatment standards of Rule 17-6.060 referenced above, that effluent disposal standards may be made more stringent than those contained in Rule 17-6.040(4)(q), viz.

    
    

    2. Additional levels of pre-application treatment (beyond the minimum) may be required by the department as a result of the method of effluent application/distribution the extent of intended public access, the characteristics of the potential receiving surface waters (e.g., where application site under drainage is designed); or groundwater protection pursuant to effluent disposal provisions of Rule 17-6.040(4)

    (q). . . .

    
    

25. As mentioned above, the permit applicant in this proceeding has agreed to condition its permit upon compliance with the additional standards generally described as "Class I reliability" embodied in Rule 17-6.040(4)(m), being the "EPA. Manual."

    
    

26. Rule 17-6.040, Florida Administrative Code adopts by reference various EPA and DER manuals concerning wastewater treatment and disposal systems which provide the technical standards and criteria which a project such as this must comply with. That rule provides:

    
    

    1. The technical standards and criteria contained in the following standard manuals and technical publications listed in subsection (4) below and those referenced

       throughout this chapter are hereby incorporated by reference and may be applied, if applicable, in determining whether permits to construct or modify domestic wastewater facilities shall be issued or denied.

       However, the standards and criteria adopted by subsection (4)(q) shall be followed for land application systems. (Emphasis supplied).

       
       

       The DER "Land Application Manual" referenced at Subsection (4)(q) of this rule provides at Section 1.3 that a sufficient storage capacity to assure retention of effluents during conditions which preclude land application (i.e. extreme rain or flood conditions) shall be provided. In relation to the subject project, this capacity should be in a volume equivalent to three days flow at the maximum daily design flow, i.e. a total of 180 thousand gallons storage capacity. The proof adduced by the co- Respondents in this proceeding, although it establishes that storage capacity in the form of a sewage retention tank will be provided, fails to prove that sufficient storage capacity to comply with this provision of the rule will be provided. Any grant of the permit must be conditioned upon a showing that a

       180-thousand gallon minimum storage retention capacity for

       effluent during conditions precluding land application will be provided in this system.

       
       

27. This rule further provides at Section 2.6 that the minimum 36-inch differential between the bottom of the disposal system (here the drain field) and the seasonal high water table must be maintained. Here again, as referenced above, although the Respondent/Applicant has proven that the fill soil of an appropriate percolation characteristic will be installed, it has failed to establish reasonable assurance that this minimum 36- inch differential will be maintained. A grant of the permit application must be conditioned upon such an assurance being provided.

    
    

28. That rule additionally provides, at Section 1.81 concerning "buffer zones," that a distance of 500 feet is recommended to be maintained between the periphery of the land application site (drain field) and existing shallow water supply wells (i.e. the Wagoner well). The minimum distance for systems designed for restricted public access may be reduced to 200 feet, provided Class I reliability is provided, as described in Section 17-6.040(4)(m), Florida Administrative Code. Here, however, the Applicant/Respondent has generally provided reasonable assurances that Class I reliability, as well as treatment sufficient to allow unrestricted public access, as envisioned in Subsection (4)(m), will be provided and in that case, Subsection (4)(q)

    provides, at Section 1.2, that the minimum buffer zone may be reduced to 100 feet. Since the applicant has provided assurance that disinfection will be sufficient to allow safe, unrestricted public access to the site, 100 feet is the appropriate buffer distance between the drain field and Petitioner Wagoner's well.

    
    

29. The Applicant/Respondent has generally provided reasonable assurances that its project will meet the requirements delineated above. The Applicant has proven that the facility will sufficiently treat influent and effluent so as to satisfy the standards for unrestricted public access pursuant to the above rule and therefore the proper buffer zone between any adjacent shallow, potable water supply to the wetted area of the drain field or effluent disposal system may be as close as 100 feet, which will be complied with in this case, it being a minimum of 345 feet to the Wagoner well. The Applicant/ Respondent has in most respects, provided reasonable assurances that this project will meet Class I reliability standards embodied in Section 17-6.040(4)(m), Florida Administrative Code, provided the above-recommended conditions on a grant of the permit are met.

    
    

30. In reiteration, those conditions are that a minimum of 180,000 gallons sewage effluent storage capability be installed in the system and that sufficient, appropriate soil fill, having adequate percolation capacity be installed to comply with the 100-year flooding parameters contained in this rule and that the minimum 36-inch differential between the bottom of the disposal system and the ~ seasonal water table will be maintained. Provided those conditions upon a grant of the permit are met, it is concluded that reasonable assurances have been provided that

the subject project will meet all the legal requirements embodied in the above-cited authority relevant to this proceeding and the permit should then be granted.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED:

That the application of Florida Medical Facilities for a permit authorizing construction of an extended aeration, wastewater treatment plant and disposal system to serve only the Englewood Hospital and Medical Center project in Englewood, Sarasota County, Florida, referenced above be GRANTED, provided

that the above-delineated conditions upon a grant of the permit are complied with.

DONE and ENTERED this 30th of January, 1986 in Tallahassee, Florida.

P. MICHAEL RUFF, 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 30th day of January, 1986.

COPIES FURNISHED:

Lyle and Mary E. Nygnard 740 Morningside Drive

Englewood, Florida 33533

Harlan Domber, Esquire ISPHORDING, PAYNE, KORP

and MUIRHEAD, P.A.

333 West Miami Avenue Venice, Florida 33595

James H. Burgess, Jr., Esquire

SYPRETT, MESHAD, RESNICK and LIEF, P.A.

Post Office Box 1238 Sarasota, Florida 33578

Douglas L. MacLaughlin, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

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

APPENDIX

The following specific rulings are made on the proposed findings of fact submitted by the parties to the extent that the proposals actually constitute proposed findings of fact as opposed to recitations of testimony and evidence, conclusions and arguments of law.

APPLICANT/RESPONDENT'S PROPOSED FINDINGS OF FACT

1. Rejected as constituting a mere discussion of evidence presented or not presented.

   
   

2. Rejected as constituting a mere discussion of evidence presented or not presented.

   
   

3. Rejected as constituting a mere discussion of evidence presented or not presented.

   
   

4. Rejected as constituting a mere discussion of evidence presented or not presented.

   
   

5. Rejected as constituting a mere discussion of evidence presented or not presented.

   
   

6. Rejected as constituting a mere discussion of evidence presented or not presented.

   
   

7. Rejected as constituting a mere discussion of evidence presented or not presented. Additionally, paragraph 7 constitutes a conclusion of law.

   
   

8. Rejected as constituting a mere discussion of evidence presented or not presented.

   
   

9. Rejected as constituting a mere discussion of evidence presented or not presented.

   
   

10. Rejected as constituting a mere discussion of evidence presented or not presented.

    
    

11. Rejected as constituting a mere discussion of evidence presented or not presented. Additionally, paragraph 11 constitutes in part a conclusion of law.

    
    

12. Rejected as constituting a mere discussion of evidence presented or not presented.

13. Rejected as constituting a mere discussion of evidence presented or not presented.

    
    

14. Accepted, but this proposed finding of fact is unnecessary and immaterial to a resolution of the material issues presented.

    
    

15. Rejected as constituting a mere discussion of evidence presented or not presented.

    
    

16. Rejected as constituting a mere discussion of evidence presented or not presented.

RESPONDENT/DEPARTMENT OF ENVIRONMENTAL REGULATION'S PROPOSED FINDINGS OF FACT

1. Accepted.

   
   

2. Accepted.

   
   

3. Accepted.

   
   

4. Accepted.

   
   

5. Accepted.

   
   

6. Accepted.

   
   

7. Accepted.

   
   

8. Accepted as modified by the Findings of Fact and Conclusions of Law in the Recommended Order concerning the conditions which must be met before the permit should be granted as that relates to Class I reliability standards and the "buffer zone" issue.

   
   

9. Accepted, but modified by the Findings of Fact in the Recommended Order concerning the necessity of the installation of a minimum 36-inch adequate soil percolation zone and adequate sewage effluent storage capacity.

   
   

10. Accepted in part, but rejected to the extent that this proposed finding of fact maintains that the nature of Mrs. Wagoner's well has been impossible to obtain due to her refusal to allow inspection. Indeed, Mrs. Wagoner adduced competent evidence of the water quality in her well.

    
    

11. Accepted in part, but modified by the Findings of Fact in the Recommended Order concerning the additional conditions that should be placed upon the permit related to its location in a flood-prone area, and related to the distance between the bottom of the drain field and the high water table.

12. Accepted.

    
    

13. Accepted, but modified by the Findings of Fact in the Recommended Order concerning the conditions referenced above which must be met for Class I reliability and for avoidance of harmful effect on Petitioner's water well.

    
    

14. Accepted.

    
    

15. Accepted.

    
    

16. Accepted..

    
    

17. Accepted, but modified by the Findings of Fact in the Recommended Order concerning additional conditions referenced above which must be met concerning Class I reliability and protection of water quality in Petitioner's-well.

    
    

18. Accepted.

    
    

19. Accepted.

    
    

20. Accepted.

    
    

21. Accepted.

    
    

22. Accepted.

    
    

23. Rejected as constituting merely a discussion of testimony.

    
    

24. Accepted.

    
    

25. Accepted.

    
    

26. Accepted.

    
    

27. Accepted, but this proposed finding is irrelevant to a resolution of the material issues presented.

    
    

28. Accepted.

    
    

29. Rejected as merely being a recitation of testimony.

    
    

30. Accepted.

PETITIONER WAGONER'S PROPOSED FINDINGS OF FACT

1. Accepted.

2. Accepted.

   
   

3. Accepted.

   
   

4. Accepted.

   
   

5. Accepted.

   
   

6. Accepted, except to the extent that it indicates the applicant will situate the facility in a manner so as not to be accessible to the general public.

   
   

7. Rejected as not comporting with the competent, substantial, credible evidence presented.

   
   

8. Rejected as not comporting with the competent, substantial, credible evidence presented.

   
   

9. Rejected as not comporting with the competent, substantial, credible evidence presented.

   
   

10. Rejected as not comporting with the competent, substantial, credible evidence presented.

    
    

11. Rejected as not comporting with the competent, substantial, credible evidence presented.

    
    

12. Rejected as constituting a discussion and conclusion of law.

13 and 14. Rejected. These two proposed findings in reality constitute discussion and conclusions of law.

15 and 16. Rejected. These two proposed findings in reality constitute discussion and conclusions of law. They are rejected for the additional reason that portions of those two paragraphs that constitute proposed findings of fact do not comport with the competent, substantial, credible evidence and testimony presented.

17 through 31. These proposed findings are rejected as constituting conclusions of law and, to the extent that they embody proposed findings of fact, are not supported by the competent, substantial, credible evidence and testimony presented. The evidence and testimony shows that reasonable assurances (except as to the permit conditions recommended) have been provided that all pertinent regulatory criteria have been or will be met. The EPA Manual criteria referenced in these proposed findings of fact (17-31) are not mandatory, whereas those in Subsection (4)(q) of the above-referenced rule are mandatory and have been reasonably assured by the applicant to be

met subject to the conditions recommended on a grant of the permit by the Hearing Officer.

1. Accepted, except to the extent that the applicant is reputed not to have provided data to substantiate the estimated design water table. The applicant's proof of the water table elevation was un-refuted.

   
   

2. Accepted as to the first sentence, the remaining portion of that proposed finding of fact is irrelevant and unnecessary to a disposition of the material issues presented.

   
   

3. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.

   
   

4. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.

   
   

5. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.

   
   

6. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.

   
   

7. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.

   
   

8. Accepted to the extent that the conditions recommended to be attached to a grant of the permit envision assurance being provided before a grant of the permit that the issue raised by proposed finding No. 39 is satisfied.

   
   

9. Accepted.

   
   

10. Accepted as to its second sentence, the first sentence in that proposed finding is rejected as not comporting with the competent, substantial, credible testimony and evidence presented, and as being unnecessary to a resolution of the material issues presented.

    
    

11. Accepted.

    
    

12. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.

    
    

13. Rejected as constituting a conclusion of law.

    
    

14. Rejected as constituting a conclusion of law.

    
    

15. Rejected as constituting a conclusion of law.

additional reason that the last sentence is a proposed finding of fact not supported by competent, substantial credible evidence and testimony presented.

1. Rejected as constituting a conclusion of law and for the further reason that the proposed finding of fact is not supported by competent, substantial, credible testimony and evidence presented.

   
   

2. Rejected in part as constituting a conclusion of law and accepted to the extent that reasonable assurances concerning the effect of the water table elevation discussed in the Recommended Order have not been provided and such assurance should be a condition on a grant of the permit. The remainder of that proposed finding of fact is not supported by the competent, substantial, credible evidence presented and is irrelevant.

   
   

3. Rejected as constituting a conclusion of law.

   
   

4. Rejected as constituting a conclusion of law.

   
   

5. Rejected as constituting a conclusion of law.

   
   

6. Rejected as constituting a conclusion of law.

   
   

7. Accepted.

   
   

8. Accepted.

   
   

9. Accepted.

   
   

10. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.

Docket for Case No: 85-002257

Orders for Case No: 85-002257