STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VOLUSIA COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 85-3029

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION and ) PENINSULA UTILITIES, INC., )

)

Respondents. )

) TOWN OF PONCE INLET, )

)

Petitioner, )

)

vs. ) Case No. 85-3474

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION and ) PENINSULA UTILITIES, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Consistent with the Correction to Order issued by the undersigned on January 16, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Daytona Beach, Florida on January 22, 1986. The issue for consideration was whether the Respondent, Department of Environmental Regulation, should issue permits to Respondent Peninsula Utilities, Inc., to construct a 100,000 gpd wastewater treatment plant expansion as well as a river outfall pipe near the Halifax River in Volusia County, Florida.

APPEARANCES

For Petitioner,

Volusia County: Was not present or represented.

For Petitioner, Lester A. Lewis, Esquire Town of Ponce P. O. Box 9670

Ponce Inlet: Daytona Beach, FL 32020

For Respondent Deborah A. Getzoff, Esq. DER: Deputy General Counsel

Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32301

For Respondent, Martin S. Friedman; Esq. Peninnsula Myers; Kenin, Levinson & Richards Utilities, Inc.: 2544 Blairstone Pines Dr.

Tallahassee; FL 32301

BACKGROUND INFORMATION

On or about August 12, 1985, the Respondent; Department of Environmental Regulation (DER); issued a notice of intent to issue a permit to Respondent, Peninsula Utilities; Inc. (Peninsula), to construct an effluent outfall pipe extending into the Halifax River from its wastewater treatment plant in Volusia County; Florida. The following day, DER issued a notice of intent to issue a permit to Peninsula to also construct a 100,000 gpd expansion to its wastewater treatment plant. Both the Town of Ponce Inlet (TPI), and Volusia County filed separate objections to both proposed projects. The files were forwarded to the Division of Administrative Hearings for the appointment of a hearing officer and the instant hearing is the ultimate result.

At the hearing; Peninsula introduced the testimony of Lawrence E. Bennett, a professional engineer expert in the area of wastewater treatment facility design and construction and presented Peninsula Exhibits A through C. DER presented the testimony of Lee Miller, supervisor of its St. Johns River domestic waste permitting section and Jan Mandrup-Poulsen, an environmental scientist in the agency's water quality analysis section. DER also introduced DER Exhibits 1 through 3.

Petitioner, TPI, presented the testimony of Richard W. Fernandez, a professional engineer expert in wastewater treatment. The Hearing Officer took official recognition of Rules 17-3.121 and 17-6.040, .060, .070, and .080, Florida Administrative Code.

On January 20, 1986, Volusia County, Petitioner in DOAH Case No. 85-3029, submitted a voluntary dismissal of its Petition in that case. No action was taken on this notice prior to hearing. Volusia County did not participate in the hearing.

Subsequent to the hearing, the other parties submitted proposed Findings of Fact which have been thoroughly evaluated and considered in the preparation of this Recommended Order.

Specific ruling on each such proposed Finding of Fact is contained in an Appendix to the Recommended Order.

FINDINGS OF FACT

1. On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit.

   
   

2. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd.

   
   

3. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards.

   
   

4. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria.

   
   

5. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985.

   
   

6. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects.

   
   

7. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected

   improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary.

   
   

8. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River.

   
   

9. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion.

   
   

10. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange.

    
    

11. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites.

    
    

12. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology.

    
    

13. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for

    completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards.

    
    

14. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office.

    
    

15. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river.

    
    

16. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question.

    
    

17. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here.

    
    

18. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the

    treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted.

    
    

19. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process.

20. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location.

    
    

21. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code.

    
    

22. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange.

    
    

23. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial.

    
    

24. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used

    by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

26. Section 403.87(4), Florida Statutes, provides DER's permitting authority over the projects in question and states, in pari materia:

    
    

    (4) The department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards for rules promulgated by the department.

    
    

27. Operating permits are provided for in Section 403.88, Florida Statutes, which specifically provides that any such discharge must be in the public interest. The issue for consideration here is the construction permit and not the operating permit, and this differentiation must be recognized.

    
    

28. Chapter 17-6, Florida Administrative Code, provides the rules for the operational standards and criteria for sewage treatment facilities and discharges. In the instant hearing, the undersigned took official recognition of Sections 17-6.040 and

    .060, regarding construction and discharge to surface waters for sewage effluent and treatment.

    
    

29. The testimony of both DER and the utility's experts clearly indicate that a thorough evaluation of the proposed discharge, will not result in any water quality violations. The

    design of the facility; as modified by the DER change to the location of the outfall pipe; which *s; significantly, a condition of the issuance of that particular permit; represents very little risk to the river's ecology. Those studies completed indicate that no shellfish beds or grass beds are located in the vicinity of the discharge and the hydrographics, as evaluated by the experts; indicate that the tidal action of the river is more than sufficient to flush the effluent out of the area on a regular and satisfactory basis. Consequently, the general permit requirements outlined in Section 17-4.29, Florida Administrative Code; are satisfied.

    
    

30. The proposed outfall pipe will not in any way impede navigation and Petitioner was unable to show any good cause why the permits should not be granted. The collateral issues it did raise, such as the EPA permitting process, the Corps of Engineers permitting process; and other agency evaluations, do not in any way constrain the approval of these permits.

    
    

31. Petitioner made much of the 201 plan as calling for and entirely different program which would duplicate and put out of business the currently questioned projects. The 201 plan is a planning program not within the consideration parameters of this hearing. Mr. Fernandez clearly indicated that in his opinion, the public interest would best be served by use of the 201 plan. There is no evidence to support this contention, however; and it is concluded that the public interests, at least as they relate to improved water quality standards, would be enhanced by permitting the current projects.

    
    

32. In short, based on the evidence presented at this hearing, there is no legitimate objection standing in the way of granting these two permits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore

RECOMMENDED THAT DER:

1. Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and,

   
   

2. Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project.

RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986.

COPIES FURNISHED:

Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301.

Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Rd. Tallahassee, Florida 32301

Lester A. Lewis, Esquire

Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A.

P. O. Drawer 9670

Daytona Beach, Florida 32020

Ray W. Pennebaker, Esquire Assistant County Attorney

P. O. Box 429

Deland, Florida 32720

Victoria Tschinkel Secretary

Department of Environmental Regulation

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

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI

1-2. Accepted in paragraph 17.

3-4. Rejected as contra to the weight of the evidence.

Rulings on Proposed Findings of Fact Submitted by Peninsula

1-13. Accepted in the Findings of Fact of the Recommended Order.

Rulings on Proposed Findings of Fact Submitted by Respondent, DER

Finding of Fact.

1. Accepted in Finding of Fact 17.

2. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact.

3. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact.

4. Accepted in Finding of Fact 23.

5. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.

Docket for Case No: 85-003029

Orders for Case No: 85-003029