STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LESTER M. WESTERMAN, )
)
Petitioner, ) and )
) SEAGLADES HOMEOWNERS ASSOCIATION,) SUSAN GUTTMAN and JAMES G. )
MULLINS, )
) CASE NO. 89-0035
Intervenors, )
vs. )
)
ESCAMBIA COUNTY UTILITIES ) AUTHORITY and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on June 14, 1989, and continued, after a recess, on June 22, 1989, finishing the following day. The Division of Administrative Hearings received the hearing transcript on August 22, 1989. Petitioner's request to supplement the record was denied by order entered on December 15, 1989.
The Division of Administrative Hearings received the hearing transcript on August 22, 1989. The parties agreed to a 45-day period following receipt of the transcript in which to prepare and file proposed recommended orders, thereby waiving the time requirements set out in Rule 28-5.402, Florida Administrative Code. Petitioner and both respondents filed proposed recommended orders on October 5 and 6, 1989. The attached appendix addresses proposed findings of fact by number.
Messrs. Westerman and Mullins appeared pro se. Nobody entered a formal appearance on behalf of Seaglades Homeowners Association. On behalf of other parties, counsel entered the following.
APPEARANCES
For Intervenor Michael Guttman
Susan Guttman: 314 South Baylen Court
Suite 201
Pensacola, Florida 32501
For Respondent Robert W. Kievit Escambia County 15 West Main Street
Utilities Pensacola, Florida 32501 Authority:
Cindy L. Bartin Joseph W. Landers Post Office Box 271
Tallahassee, Florida 32302
For Respondent Stephen K. Hall Department of Assistant General Counsel
Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE
Whether the Department of Environmental Regulation (DER) should grant the revised application Escambia County Utilities Authority (ECUA) has made for a permit to construct a pumping station, force main, and land application facility, in order to dispose of effluent from ECUA's Warrington Sewage Treatment Plant on a site in southwest Escambia County near Big Lagoon?
PRELIMINARY STATEMENT
ECUA initially applied for a construction permit on January 22, 1988.
After modifications reflecting redesign, DER issued its notice of intent to grant the application, as modified, on November 17, 1988 (No. DC 17-144150). In response, Lester Westerman filed a petition for formal administrative hearing, on December 2, 1988.
In accordance with Section 120.57(1)(b)3., Florida Statutes (1987), DER referred the petition to the Division of Administrative Hearings for hearing. By order entered March 14, 1989, Seaglades Homeowner Association was granted intervenor status. At the final hearing, James Mullins and Susan Guttman were also allowed to intervene, without objection.
FINDINGS OF FACT
South of the intersection of Blue Angel Parkway and Gulf Beach Highway in southwest Escambia County lies the wooded, 69-acre tract, designated "Site F," onto which ECUA proposes to dispose up to three million gallons of wastewater a day.
Petitioner Westerman operates a marina nearby. The individual intervenors own houses in the vicinity as, apparently, do other members of the intervening association. A state agency with wide ranging environmental responsibilities, DER permits construction of wastewater treatment facilities in conformity with its rules. Sewage disposal is one of several utility services ECUA provides residents of Escambia County.
A Trip to the Beach
Under orders from DER and the Environmental Protection Agency (EPA) to cease discharging directly into Bayou Chico ("a very impacted body of water ... [with] very difficult problems" T. 101), ECUA proposes to build a
pumping facility and install enough 24-inch pipe to enable it to send effluent from its wastewater treatment plant in Warrington to Site F, for "rapid rate" land application.
Upgraded since DER and EPA forbade direct discharges into Bayou Chico, the Warrington plant now employs advanced treatment techniques to remove most phosphorous and nitrogen from its effluent.
Nevertheless, in order to mollify regulators, ECUA has plans to ship the effluent through some seven miles of pipe to Site F. In the opinion of its executive director, ECUA is "an easy target . . . . Whether it's practical or fair is really not the question." Id. He feels, "cost is not a factor" (T.
102) that the regulatory authorities have taken into account.
Sandy Soils
Site F straddles a coastal ridge, vegetated dunes that separate Garcon Swamp from Big Lagoon. Elevations vary from 29 feet above mean sea level at the crest of the ridge to nine feet above mean sea level in the swale that traverses the property. Highly permeable surficial sand extends to depths ranging between 20 and 35 feet below grade.
Under the surficial sand, a layer of silty sand, extending down 55 to
60 feet, overlies another layer of very clean sand, much denser than the surficial sand. At depths of 90 to 110 feet, a clay aquiclude undergirds these sandy strata.
Using field and laboratory test results, experts put the average hydraulic conductivity of the surficial sands at 35 feet per day, of the silty middle sand layer at 10 to 15 feet per day, and of the clean but dense sands on top of the clay at 5 to 10 feet per day. In addition to laboratory results, two pump tests support these conclusions. Results of two other pump tests indicating hydraulic conductivity of 4.7 and 5.0 feet per day were dismissed as unreliable. Sand caving in compromised at least one of these tests. As far as the record reveals, no bench-scale or pilot-scale hydraulic testing took place.
According to DER's Mr. Reinning, there was "more soil testing on this site than [he had] seen on any other permit event." T.II. 217. Although the soils on the site are "relatively uniform," (T.II. 212) no layer of sand is perfectly uniform. Mr. Jacobs, one of ECUA's consultants, testified that a boring on one of the proposed pond sites revealed a one-foot layer of sand and organics with a vertical hydraulic conductivity of one foot per day.
T.I. 245. Perhaps Mr. Jacobs was referring to boring B-2, which, according to the log, reflects a two-foot interval of peat and decaying wood, at a depth of slightly more than 13 feet. ECUA's Exhibit 2. No other boring gave evidence of this layer. The nearest bore hole to B-2 was more than 200 feet away. Expert testimony that the borings did not indicate an "extensive pocket," and gave no reason to fear a "per(c)hed water table," (T.II. 214) was not controverted.
Construction Plans
ECUA proposes to construct 16 percolation ponds or cells on Site F. Seven pairs of cells would be terraced on a north-south axis, with an eighth, noncontiguous pair at an angle in the southwestern portion of the property.
Cell bottoms, at elevations ranging between 16 and 27 feet above mean sea level, would have a surface area aggregating some 23 acres (1,027,900 square feet.)
ECUA would erect a perimeter fence and install warning signs. Except for valves, "no mechanical equipment [would be) involved in the disposal site," T.123, nor are "bright lights," id. planned. Water flowing into percolation ponds does not create an aerosol. Odors are not foreseen.
Encircling each infiltration basin, berms three to three and a half feet higher than the cell bottoms would contain effluent and deflect sheet flow. Except for rain falling directly into the cells, stormwater would not reach the percolation cells. Chances that effluent augmented by rainfall would overflow the berms are remote. A 100-year, 24-hour return storm would not interrupt operation of the facility. No percolation pond site lies within the 100-year flood plain.
No percolation basin is to be located within 500 feet of a potable water supply well or class I or class II surface water; or closer than 100 feet to the boundary of the property. Situated within some 20 acres of wetlands, a brackish pond lies about 1,000 feet from the nearest cell planned, between Site F and Big Lagoon into which the pond opens. At the nearest point, Big Lagoon itself comes within 1200 feet of a planned percolation cell.
A swale or slough bridged by Blue Angel Parkway runs southwesterly north and west of the main phalanx of percolation ponds ECUA proposes, then turns a corner and runs southeasterly, separating the two cells proposed for the southwest portion of the property from the others. The nearest percolation pond is to be built about 100 feet from wetlands associated with the swale.
Loading Rates
ECUA plans to direct wastewater into half the cells one week and the remainder the next, alternating like the squares on a chessboard. The exact cycle is not a condition of the construction permit, however, and computer modelers assumed loading cycles consisting of two two-day periods. As applied to the total bottom area of percolation cells, the average daily loading rate for three million gallons a day (mgd) would amount to 2.91 gallons per square foot. Because half the ponds would be resting at any given time, ponds receiving effluent would experience inflow at an average rate of 5.82 gallons per square foot.
In deciding the length of the loading cycle, as "the soil gets lower in permeability you have to really stretch your time for loading out, because it takes the water much longer to get out of the loading area." T.I. 188. But, with respect to the long-term capacity of the system, "the period of loading and resting . . . really doesn't significantly affect . . . how the site is expected to perform." T.II. 222. In the absence of bench-scale or pilot-scale
tests heretofore, the applicant "intend[s] to load test this site, because just for the various concerns, because it is a big site." T.I. 189.
Groundwater Effects
Class G-II groundwater under the site now flows generally southerly toward the brackish pond and Big Lagoon. An expert put the rate of flow under the site at .22 feet per day, but concluded that the rate increased to approximately a half foot a day between Site F and Big Lagoon. As far as is known, groundwater under the sites proposed for the infiltration ponds rises no
closer to the surface than six to nine feet, even under wet conditions, although the evidence by no means conclusively established that it would never rise higher.
Some groundwater emerges in the swale during wet periods, and flows in the swale as far as the brackish pond, to which other groundwater makes regular, direct contribution. At the edge of the lagoon, further out in the lagoon and possibly in the Gulf of Mexico, still other groundwater comes up as springs.
At least initially, the sandy soils would accept effluent readily. Until and unless actual experience showed that the facility could handle the three mgd for which it is designed, the plan is to dispose of no more than 2.5 million gallons of effluent a day.
Before equilibrium is attained, ongoing disposal of effluent would gradually raise the level of groundwater under the site, inducing, on the preexisting, sloping surface of ambient groundwater, a mound, on which
16 smaller mounds (corresponding to the loading nozzles discharging wastewater into the percolation ponds) would superimpose themselves, half swelling, like so many goose eggs, half subsiding, at any given time.
Adding effluent should not materially alter the ultimate direction of flow. For the most part, even groundwater flowing in other directions off the mounds induced under the site would eventually turn south toward the lagoon. But a steeper gradient should speed up the flow. Percolating effluent would increase the volume not only of seepage into the swale but also of subterranean
flow reaching both the brackish pond and the lagoon. Increased seepage upslope from the slough would flow down into the swale, along the stream bed, and into the brackish pond.
Monitoring
As modified at hearing, ECUA's monitoring plan contemplates eight wells and four surface water monitoring points from which water samples would be periodically taken for analysis, to determine levels of nitrogen, phosphorous and other chemical and biological constituents of concern.
Once the facility began operating, no well would yield "background" samples uninfluenced by the effluent. T. I. 221. The wells are all to be located on ECUA property and, therefore, close enough to the percolation ponds to receive ground water flows radiating from the mounds adding the effluent would induce.
Final Destination
Effluent emerging in seepage, perhaps as much as 75 percent of the total (T. III. 47), could reach Big Lagoon, by way of the swale and the brackish pond, soon after regaining the surface of the land. Wetland vegetation would filter such flows, already diluted underground and sometimes by stormwater runoff, on their way to the lagoon.
Effluent that mixed with groundwater traveling to Big Lagoon underground would not show up in the lagoon for months or years. But when it arrived, much diluted and after such attenuation of pollutants as the largely inorganic soils afforded, it would also contribute to subtle changes in the waters of Big Lagoon.
Virtually all effluent would ultimately end up in Big Lagoon. T.I. 234; T.III.45. Two channels connect Big Lagoon to Pensacola Bay to the east, and a single, more constricted channel connects it to Perdido Bay to the west. Tides influence the circulation of the Class III water within Big Lagoon, variously calculated to amount to some ten or eleven billion gallons of clean salt water. Through Pensacola Bay and Perdido Bay, Big Lagoon communicates with the Gulf of Mexico.
As the tide rises, water from the adjacent bays enters the long and narrow reaches of Big Lagoon, at either end. As the tide ebbs, water in the lagoon (including a significant portion of bay water introduced by the preceding tide) flows out either end. ECUA's expert's claim that tides flush the lagoon in less than nine days did not take this back-and-forth movement into account, or look specifically at the four-billion gallon basin into which the brackish pond overflows.
Big Lagoon lies south of the mainland and north of Perdido Key, one of the barrier islands paralleling the coast. These islands and waters north of them, extending as far as the southern boundary of the intracoastal waterway, comprise the Gulf Islands National Seashore. By rule, the waters of Big Lagoon south of the intracoastal waterway have been designated Outstanding Florida Waters. Two to three hundred yards wide, the intracoastal lies not far offshore the mainland.
Water Quality
Analysis of a single ground water sample revealed nutrient levels, but neither the applicant nor DER developed any data specific to Big Lagoon about nutrient levels there. Chemical analyses done on four samples of lagoon water (at petitioner's expense) revealed no nitrate nitrogen above detection levels in any of the samples, and no ammonia nitrogen above detection levels in three of the four samples, but disclosed 0.08 parts per million in the fourth. Three of the four samples contained 0.02 parts phosphorous per million, while the fourth had phosphorous in a concentration of
0.03 parts per million.
Tests with water taken from Big Lagoon showed that the addition of both nitrogen and phosphorous compounds (but not the addition of one without the other) coincided with algal growth in one of four sets of samples, each set including a control in which such growth did not occur. In other samples of lagoon water into which algae were introduced, the addition of nitrogen, either alone or in combination with phosphorous, seemed to cause blue-green algae
to predominate, instead of the dominant, indigenous pennate diatoms.
In these experiments, ammonia chloride was added to produce nitrogen concentrations of 17.5 grams per liter, six times greater than would be allowed in the effluent, as much as 17 times greater than the concentration petitioner's expert predicted for wastewater reaching the lagoon, and two orders of magnitude above ambient levels. The experimenter also added sodium phosphate dibasic heptahydrate to create phosphorous concentrations of four grams per liter, which is also two orders of magnitude above levels naturally occurring in Big Lagoon.
Special permit conditions limit (on an annual average) total nitrogen in effluent sent to Site F to 75 pounds per day, and phosphorous to one milligram per liter, which would amount to 25 pounds in three million gallons, the maximum daily flow. Permit conditions also prescribe limits for acidity and
alkalinity (pH must be greater than 6.0 and less than 8.5), suspended solids, and biochemical oxygen demand. Basic dis- infection is required.
Assuming ECUA disposed of three mgd at Site F, up to 25 pounds of phosphorous could be added to the estuary daily, on average, or more than a ton of phosphorous quarterly, if steady state were attained. Although three times as much nitrogen might occur in the effluent, oxidation and reduction would cause some nitrogen to enter the atmosphere as a gas instead of remaining dissolved until it reached the estuary. Not only organic components of the soil but also organic matter arriving in the effluent and accumulating on pond bottoms would contribute to denitrification. Salinity in the brackish pond would decline.
A DER employee, Mr. Swartz, testified that placing three mgd of effluent in the planned percolation ponds "would not result in degradation of the surface water," (T. II. 127) citing "our experience here in Florida." Id. Whatever may be said as regards the brackish pond, no evidence gave substantial reason to question the accuracy of this opinion as it relates to waters south of the intracoastal waterway.
CONCLUSIONS OF LAW
Because DER referred petitioner Westerman's timely request for formal administrative proceedings to the Division of Administrative Hearings, the "division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).
The courts view it "as fundamental that an applicant for a license or permit carries `the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour,Inc., v. State Division of Beverage,
347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Rule 17- 4.070(1), Florida Administrative Code provides that a "permit shall be issued
. . . only if the applicant affirmatively provides reasonable assurance based on plans, test results . . . or other information, that the construction will not . . . cause pollution in contravention of Department standards or rules."
Although DER amended its rules governing wastewater treatment plants after ECUA filed its application, the amendments have not "stated a novel requirement with respect to which a party ha[s] not been given an opportunity to conform its proof." Turro v. Department of Health and Rehabilitative Services,
458 So.2d 345, 346 (Fla. 1st DCA 1984). Among other things, the applicant presented a mounding analysis, as the rules now require. Although the applicant did not, in every respect, avail itself of its opportunity to show compliance with existing regulations, the present case justifies no exception to the general rule that administrative agencies must act in compliance with the rules in effect at the time they take action. DeCarion v. Martinez, 537 So.2d 1083 (Fla. 1st DCA 1989); Woodley v. Department of Health and Rehabilitative Services, 505 So.2d 677 (Fla. 1st DCA 1987); Turro v. Department of Health and Rehabilitative Services, 458 So.2d 345 (Fla. 1st DCA 1984); Humhosco, Inc. v. Department of Health and Rehabilitative Services, 476 So.2d 258 (Fla. 1st DCA 1985); Grove Isle, Ltd. v. Bayshore Homeowners'
Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982) rev. den. 430 So.2d 451 (Fla. 1983); Leesburg Regional Medical Center v. Department of Health and Rehabilitative Services, 6 FALR 1756.
DER has yet to take final action on ECUA's application. Because, after DER issued its notice of intent to grant the application, petitioner Westerman made a timely request for formal administrative proceedings, DER's action on the application must be deemed tentative only. Couch Construction Co. v. Department of Transportation, 361 So.2d 172, 176 (Fla. 1st DCA 1978); McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1979). When DER takes final action on the application, it must do so on the basis of the rules now in effect. , Grove Isle, Ltd. v.
Bayshore Homeowners' Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982) rev. den. 430 So.2d 451 (Fla. 1983).
Necessary Degradation
DER rules specify that any "discharge to ground water shall not impair the designated use of contiguous surface water," Rule 17-3.0401(5), Florida Administrative Code, or "[i]mpair the reasonable and beneficial use of adjacent waters," Rule 17- 3.402(1)(f), Florida Administrative Code, or alter "nutrient concentrations . . . so as to cause an imbalance in natural populations of aquatic flora or fauna." Rule 17-3.121(19), Florida Administrative Code. But the rules do not proscribe all diminution of natural water quality.
(7) If the Department finds that a proposed new discharge or expansion of an existing discharge will not reduce the quality of the receiving waters below the classification established for them, it shall permit the discharge if such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, and if all other Department requirements are met. .
Rule 17-3.402?, Florida Administrative Code. The objectors showed that, in time, nitrogen and phosphorous in the effluent would reach Big Lagoon, even if groundwater with which the effluent mixed made the whole trip underground. But the evidence was also clear that no direct discharge to Outstanding Florida Waters would occur under any circumstances.
Effluent already significantly diluted before reaching the lagoon would be further diluted dramatically before a portion mingled with billions of gallons of Outstanding Florida Waters. So long as "all other Department requirements are met," Rule 17- 3.0410, Florida Administrative Code, DER's rules do not preclude grant of the application on grounds that (perhaps undetectably) small quantities of additional phosphorous and nitrogen would reach Outstanding Florida Waters. The evidence as a whole, while showing that surface water in the immediate vicinity would be affected, gave reasonable assurance that the project would not significantly alter outstanding Florida waters.
Petitioner's evidence concerning algae growth in samples of water taken from Big Lagoon raises the possibility that, in time, surface water nearest the proposed facility, particularly in the brackish pond, may exhibit "an imbalance in natural populations of aquatic flora." Rule 17-
3.121(19), Florida Administrative Code. But, since the evidence showed that nitrogen and phosphorous would occur in much smaller concentrations in the effluent than the concentrations chosen for the experiments, the experimental evidence does not meet the DER expert's testimony that surface waters would not be degraded.
Even though petitioner's evidence established that, eventually, several tons of nutrients would enter surface waters annually, petitioner did not prove that algal populations would in fact change as a result, and did not rebut, therefore, in any material way, Mr. Swartz's sworn testimony that this tonnage would not adversely affect the receiving waters.
Other Rules
In addition to general rules governing impacts on receiving waters, DER has promulgated rules specifically with respect to wastewater treatment plants. Petitioner apparently concedes the applicant's proposal is fully consonant with most of these. Buffer zones and fences separate the proposed disposal facility from adjoining, undeveloped property. DER would require preapplication treatment sufficient to assure no more than three milligrams of total nitrogen per liter, as compared to the 12- milligram-per- liter standard set out in Rule 17-16.510, Florida Administrative Code.
But petitioner contests the application's compliance with DER's requirements regarding ground water monitoring, and questions whether requisite tests support proposed hydraulic loading rates. The rules discuss in detail various requirements relating to hydraulic loading rates and cycles:
Hydraulic loading rates shall be developed on the basis of representative percolation tests (drainfield percolation tests described in Rule 10D-6.031, F.A.C. are inappropriate) which simulate actual loading conditions that will prevail during the design life of the rapid-rate system. This shall involve bench-scale or pilot-scale hydraulic testing with either the actual reclaimed water to be applied, or other water properly adjusted to correspond to the composition of the reclaimed water to be applied. The design loading rate shall allow for the expected gradual reduction in percolation rate due to long-term application of reclaimed water.
The design hydraulic loading (and application) rate shall be related to the hydraulic conductivity and transmissibility and of the geological formations at the project site which shall be evaluated in- depth by the permittee, with assistance from organizations or individuals qualified by training or experience in soil science, geology, and hydrology.
Initial hydraulic loading rates shall be limited to 3 inches per day, or 1.9 GPD/FT, as an annual average where hydrogeologically feasible and as applied to
the total bottom area of percolation cells. An applicant may request higher loading rates based on justification provided in the engineering report, but such rates shall not exceed 9 inches (5.6 GPD/FT) per day. The hydraulic loading rate shall be related to the clear water saturated vertical hydraulic conductivity for the most restrictive layer in the unconsolidated medium underlying the site. However, application rates during the loading cycle for individual percolation cells comprising the system will depend on the hydraulic loading rate and the loading/resting cycle for the system. They shall be conservative and shall not exceed 25 percent of the documented vertical hydraulic conductivity, as described above, to control ground water mounding and ensure hydraulic performance of the system. Justification for use of selected design hydraulic criteria shall be required in the engineering report. These design criteria shall be based on the pollutant load in the reclaimed water to be applied, the characteristics of the underlying soil and aquifer system, loading and resting cycles to be used, and other process design considerations (including denitrification reactions that may be incorporated into the facility's design).
Hydraulic loading and resting cycles shall be developed so as to restore operating percolation rates of the pond system to design levels by the end of the resting period. Hydraulic loading periods of 1-7
days with resting periods of 5-14 days to dry the cell bottoms and enable scarification or removal of deposited solids are required.
Design loading and resting cycles and other maintenance measures required to ensure system performance shall be described in the engineering report.
A ground water mounding analysis based on site-specific information shall be included in the engineering report. This analysis shall demonstrate acceptable long- term hydraulic performance of the system.
Rule 17-610.523, Florida Administrative Code (emphasis supplied.) Until April 4, 1989 (more than two months before the final hearing) DER's rules, which
incorporated by reference the Land Application Manual, suggested (in Section 2.7 of the Manual), but did not require, bench-scale or pilot-scale hydraulic testing, and apparently none was done.
Experience has evidently taught the value of such testing, and the rules now require it. Adopted simultaneously with the current requirement was Rule 17-610.110, Florida Administrative Code, which provides in pertinent part:
(2) Unless specifically provided otherwise, requirements in this rule shall apply to all new reuse and land application systems for which permit construction applications are approved by the Department after the effective date of this rule.
DER has not approved ECUA's application, Couch Construction Co. v. Department of Transportation, 361 So.2d 172, 176 (Fla. 1st DCA 1978); McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1979), nor did the application even assume its present form until after the final hearing began.
Intent to approve is not approval. Both general principles and Rule 17- 610.110, Florida Administrative Code, dictate that existing rules be given effect.
Before and after ECUA applied, DER rules have specifically required monitoring of ground water in the vicinity of waste water percolation ponds. The current rule reads:
A ground water monitoring well program shall be established by the permittee and approved by the Department, pursuant to Rule 17-28.700, F.A.C. (unless otherwise exempted by that section).
The manual referenced in Rule 17- 610.300(4)(d), F.A.C., contains general technical guidance regarding the design and construction of monitoring wells and ground water sampling procedures. Ground water test wells resulting from hydrogeologic exploratory programs, background water quality determinations or other requirements may be approved by the Department for use as part of the compliance monitoring well system.
Ground water sampling parameters for monitoring background and receiving water quality will be established by the Department based upon the quality of reclaimed water to be discharged, site specific soil and hydrogeologic characteristics, and other considerations, in accordance with Rule 17- 28.700, F.A.C. Water levels shall be recorded before evacuating wells for sample collection. Elevation references shall include the top of the well casing and land surface at each well site (NGVD allowable) at a precision of plus or minus 0.1 foot.
Rule 17-610.424, Florida Administrative Code, made applicable by Rule 17- 610.524, Florida Administrative Code. Among other things, Rule 17- 28.700, Florida Administrative Code, or its successor requires:
Unless the installation owner can demonstrate that detection can be obtained by a methodology other than the use of monitoring
wells, wells shall be located as follows:
1. One well located in a manner to determine the natural unaffected background quality of the ground water.
ECUA did not seek to show here that a methodology other than monitoring wells should be resorted to, nor would use of another methodology be consistent with Rule 17-610.424, Florida Administrative Code.
Instead, on the authority of Hopwood v. Department of Environmental Regulation, 402 So.2d 1292 (Fla. 1st DCA 1981), ECUA was allowed to amend its application at hearing, over the protestants' strenuous objections, in an effort to propose a ground water monitoring regime in conformity with departmental requirements. ECUA now argues that "there is never absolute assurance that the background well will not be impacted by a proposed activity." ECUA's Proposed Recommended Order, p. 21. In the present case, there was no assurance whatsoever, even after the amendment. All the credible evidence, including testimony of ECUA's own consultant, made it clear that adding three million gallons of effluent a day to Site F would require digging a monitoring well off-site, in order to obtain groundwater samples unaffected by the effluent.
It is, accordingly, RECOMMENDED:
That DER deny the application, without prejudice to the filing of another after successful bench-scale or pilot-scale hydraulic testing and after ECUA has made arrangements for a ground water monitoring well from which samples unlikely to be affected by the effluent may be drawn.
DONE and ENTERED this 2nd day of February, 1990, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1990.
APPENDIX
Petitioner's proposed findings of fact Nos. 1 through 8, 13, 14, 16 and 18 have been adopted, in substance, insofar as material.
Most of petitioner's proposed finding of fact No. 15 accurately recites testimony adduced, but Shuba testified that algal growth has been stimulated
by nutrient concentrations comparable to those Dohms said would occur in water entering Big Lagoon, not in concentrations likely to exist once this wastewater-bearing contribution mixed with other water in the lagoon.
Petitioner presented information about nutrient levels in lagoon water at hearing. Computer modeling suggested break out, which has been considered.
Petitioner's proposed findings of fact Nos. 17 and 19 accurately recite the testimony.
DER's proposed findings of fact Nos. 1, 2, 3, 4, 5, 10, 11, 12, 13, 15, 16,
17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 42 and 43 have been
adopted, in substance, insofar as material.
With respect to DER's proposed finding of fact No. 6, the rate of flow increases south of the proposed pond sites.
With respect to DER's proposed findings of fact Nos. 7 and 8, seasonal high ground water elevations were not shown conclusively.
With respect to DER's proposed finding of fact No. 9, the aquiclude lies 90 to 110 feet below the surface.
With respect to DER's proposed finding of fact No. 14, the rule requires a five-day rest.
With respect to DER's proposed findings of fact Nos. 33, 34 and 35, the current rules do require mounding analysis, and there seemed to be a consensus that ground water enhanced by effluent would seep to the surface downslope from the ponds.
With respect to DER's proposed findings of fact Nos. 36 and 37 and 44, free form agency action is technically immaterial.
With respect to DER's proposed findings of fact Nos. 38, 39, 40 and 41, effluent would have mixed with groundwater before reaching Big Lagoon, but increased levels of nitrogen and phosphorous could be detected, as a result.
ECUA's proposed findings of fact Nos. 1, 3, 4, 5, 6, 8, 10, 11, 12, 15, 16,
17, 20, 23, 24, 25, 26, 27, 28, 36, 37 and 38 have been adopted, in substance, insofar as material.
With respect to ECUA's proposed findings of fact Nos. 2, 13, 21 and 32, the evidence showed that it was not unlikely that effluent, after percolating
through pond bottoms and mixing with groundwater, would seep to the surface down slope.
With respect to ECUA's proposed finding of fact No. 7, proposed cell bottom elevations fall in this range.
With respect to ECUA's proposed finding of fact No. 9, the evidence did not establish that the high water table will always be nine feet below the pond bottoms. With the induced mound, ECUA's proposed finding of fact puts it at one to two feet.
With respect to ECUA's proposed finding of fact No. 14, the tidal range is too high and the calculation ignores the back and forth movement of waters at either end of the lagoon.
With respect to ECUA's proposed findings of fact Nos. 18 and 19, the current standard pertains total nitrogen.
With respect to ECUA's proposed finding of fact No. 22, freeboard will vary with rainfall and effluent levels.
ECUA's proposed findings of fact Nos. 29, 30, 31 and 34 relate to subordinate matters.
With respect to ECUA's proposed finding of fact No. 33, more than one analysis was done.
With respect to ECUA's proposed finding of fact No. 35, the applicant has given reasonable assurance.
COPIES FURNISHED:
Robert W. Kievit, Esquire Lester M. Westerman
10451 Gulf Beach Highway Pensacola, FL 32507
James Mullins
11001 Gulf Beach Highway Pensacola, FL 32507
Susan Guttman
11315 Sea Glade Drive Pensacola, FL 32507
Cindy L. Bartin, Esquire
15 West Main Street Pensacola, FL 32501
Joseph W. Landers, Esquire
310 West College Avenue Tallahassee, FL 32302
Stephen K. Hall, Esquire Asst. General Council
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, FL 32301
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AGENCY FINAL ORDER
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STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
LESTER M. WESTERMAN,
Petitioner,
and
SEAGLADES HOMEOWNERS ASSOCIATION, SUSAN GUTTMAN and JAMES G. MULLINS,
Intervenors,
vs. DOAH CASE NO. 89-0035
OGC CASE NO. 88-1151
ESCAMBIA COUNTY UTILITIES AUTHORITY and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On February 2, 1990, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to me and all parties to this matter his Recommended Order, a copy of which is attached as Exhibit "A." On February 19 Respondents Escambia County Utilities Authority (ECUA) and State of Florida Department of Environmental Regulation (Department) submitted exceptions to the Recommended Order. On February 27 Petitioner Lester M. Westerman ("Westerman") filed a document entitled "Petitioner's Statement to Recommended Order," to which ECUA filed a response and request to reject on March 1. The matter thereupon came before me as Secretary of the Department for final agency actions.
BACKGROUND
On January 22, 1988, ECUA applied for a permit to construct a pumping station, force main, and land application facility, in order to dispose of effluent from ECUA's Warrington Sewage Treatment Plan onto a site in Escambia County. The Department issued a notice of intent to issue the application on November 17, to which Westerman filed a petition for administrative proceeding on December 2. A hearing on the matter was held for three days in June, 1989, whereupon the Hearing Officer issued his Recommended Order.
The Hearing Officer found the project met Department requirements in all aspects except the following: ECUA had failed to perform "successfull bench- scale or pilot-scale hydraulic testing," and had not "made arrangements for a
ground water monitoring well from which samples unlikely to be affected by the effluent may be drawn." (Recommended Order at p. 22) He therefore recommended that the Department deny the application "without prejudice to the filing of another" after these deficiencies could be corrected. (Id.)
In finding that the bench-scale or pilot-scale hydraulic testing was required, the Hearing Officer relied on Florida Administrative Code (F.A.C.) Rule 17-610.523(1), which sets forth conditions for how hydraulic loading rates shall be developed, and states that such development "shall involve bench-scale or pilot-scale hydraulic testing..." (Emphasis supplied) This contrasts with former F.A.C. Rule 17-6.040(8), in effect at the time the intent was issued, which incorporated the Department's Land Application Manual, Part 2.7 of which provided that the development "may involve bench-scale or, peferably, pilot- scale hydraulic testing ..." (Emphasis supplied.) The Hearing Officer concluded that F.A.C. Rule 17-610.523(1) was applicable to this proceeding because the grandfather provision in Rule 17-610.110(2) states that the new requirements apply to "construction permits [that] are approved after the effective date of this rule." The Hearing Officer opined that approval only occurs upon final agency action, which would occur after adoption of the new rule. Since the intent to issue was only proposed agency action, he concluded that the new rule must necessarily be applicable to this proceeding.
Regarding the monitoring wells, the Hearing Officer concluded that ECUA failed to provide proof of compliance with F.A.C. Rule 17-28.700. That Rule requires placement of a background well "in a manner to determine the natural unaffected background quality of the ground water" unless "the installation owner can demonstrate that detection [of natural background] be obtained by methodology other than the use of monitoring wells." The Hearing Officer found that " [a]ll the credible evidence ... made it clear" that it would be necessary to dig a monitoring well off-site. (Recommended Order at p. 21)
RULING ON PETITIONER'S STATEMENT TO RECOMMENDED ORDER AND ECUA'S RESPONSE THERETO AND REQUEST TO REJECT
On February 27, 1990, Westerman filed with the Department a document entitled "Petitioner's Statement to Recommended Order," which appears to be partially in the nature of exceptions to the Recommended Order and partially in the nature of a response to the exceptions filed by ECUA and the Department. On March 1, 1990, ECUA filed a written response noting that the deadline for filing exceptions in this matter was February 19, 1990, and requesting me to reject Westerman's purported exceptions as untimely filed.
Having reviewed the record in this matter, I agree that Westerman's document was not filed within the time required by Rule 17-103.200(1), F.A.C., (15 days) and must therefore be rejected as exceptions. ECUA's request to reject is granted to this extent. However, Westerman's document was filed within the time allowed for filing responses to exceptions, and therefore it has been accepted and considered as a response to the exceptions of ECUA and the Department.
RULING ON ECUA'S EXCEPTIONS TO FINDINGS OF FACT AND ECUA'S EXCEPTIONS NO. 23-28 TO CONCLUSIONS OF LAW
In its Exceptions to Findings of Fact, as well its Exceptions to Conclusions of Law Numbers 23 through 28, ECUA excepts to the Hearing Officer's findings and conclusions that none of the wells proposed by the applicant would
yield background samples uninfluenced by the effluent, and that the application therefore fails to comply with F.A.C. Rule 17-28.700, which requires that one well be located "in a manner to determine the natural unaffected background quality of the ground water." The Hearing Officer also accepted, in his Appendix to the Recommended Order, Westerman's Proposed Finding of Fact No. 16, which provided, in pertinent part:
16. The modification to the draft permit [ECUA's Exhibit #1] established well MW-7, located on the northwest corner as the only background well, unfortunately, it will be influenced by discharge from the site ...
(Westerman's Proposed Recommended Order at 17, transcript citations omitted) These findings and conclusions by the Hearing Officer led in part to his recommendation that the application be denied
without prejudice to the filing of another after successful bench-scale or pilot-scale hydraulic testings and after ECUA has made arrangements for a ground water monitoring well from which samples unlikely to be affected by the
effluent may be drawn. (Recommended Order at 22)
The essence of ECUA's argument is that it modified the application during the hearing to move the monitoring well farther away from the location of the proposed discharge (but still on the proposed site), and that the testimony relied on by the Hearing Officer in making his findings and conclusions was based on the application before such modification. However, ECUA's exceptions do little more than reargue the evidence by citing conflicting testimony that would have supported ECUA's position had such testimony been accepted by the Hearing Officer. The exceptions fail to address the Hearing Officer's finding, set forth in his Conclusions of Law, that "[a]ll the credible evidence, including testimony of ECUA's own consultant, made it clear that adding three million gallons of effluent a day to Site F would require digging a monitoring well off-site, in order to obtain groundwater samples unaffected by the effluent." (Recommended Order at 21)
The issue for my determination, then, is not whether the record discloses competent substantial evidence to support a contrary conclusion by the Hearing Officer, but whether his findings of fact forming the basis for his conclusions have competent substantial evidentiary support. Section 120.57(1)(b)10., Florida Statutes. In reviewing the transcript, I find that the Hearing Officer's findings are supported, among other testimony, by the testimony of Jeffrey Swartz, who testified that effluent would radiate in every direction beyond site boundaries (Transcript Book 2 at 146); and by the testimony of Larry Jacobs (ECUA's consultant), who testified in essence that the proposed on-site location was the best location on the site for the background well, that the well would nevertheless be affected by the effluent, and that the well would have to be placed off-site in order to obtain background samples unaffected by the effluent. (Transcript Book 1 at 219-21) Accordingly, I reject ECUA's exceptions on this issue.
RULING ON ECUA'S EXCEPTIONS NO. 1 - 27 TO CONCLUSIONS OF LAW AND THE DEPARTMENT'S EXCEPTIONS TO CONCLUSIONS OF LAW
Both ECUA and the Department take exception to the Hearing Officer's conclusion that the mandatory requirements for hydraulic testing in F.A.C. Rule 17-610.523(1) is applicable to this proceeding rather than the permissive provisions of the Land Application Manual. Both parties argue against the Hearing Officer's analysis of the grandfather provision in F.A.C. Rule 17- 610.110(2), in which he interpreted Department approval to mean final agency action after a Section 120.57(1), Florida Statutes, proceeding, rather than the proposed agency action of an intent to issue. The parties argue that the intent constitutes the approval for the purposes of application of the grandfather provision.
The Hearing Officer's legal analysis is very similar to one that was rejected in Lin v. Department of Professional Regulation, 444 So.2d 1105 (Fla. 1st DCA 1984). There the court held that the term "denial" under Section 120.60, Florida Statutes, is not interchangeable with the term "final order" under Section 120.59, Florida Statutes. The court found a "more rational and unquestionably a more workable interpretation" of an agency's denial to be when "the agency notifies the applicant of its intent to deny the license within the [Section 120.60] 90-day period." (Id. 1107)
Section 120.60, of course, refers to an agency's responsibility to take action to approve or deny a permit or license application within the required time frames. Section 120.59 refers to the final order issued after a Section
hearing has been held on a proceeding inititated to challenge the approval or denial made pursuant to Section 120.60. Therefore, the logic of Lin is equally dispositive whether the original agency action was an intent to issue or a intent to deny, and the grandfather provisions in this case most necessarily apply when the Department issued its intent.
This case is a very good illustration of why the Hearing Officer's analysis can under no circumstances be considered "more rational" or "unquestionably ... more workable." All parties to this proceeding operated under the assumption that the Land Application Manual was controlling. See Transcript Book 1, pages 33 and 44; and Book 2, pages 35, 67, 70, 71, 73, 95, 131, 174 and 175.
Furthermore, the Department's position at the hearing was that it interprets the term "approval" for purposes of applying the grandfather provision, to mean issuance of an intent to issue. (Transcript Book 1 at 36) Finally, the Proposed Recommended Orders all referenced the rules that existed at the time of the intent to issue. The Hearing Officer's legal conclusion apparently sprang forth out of his own legal analysis after the hearing, independent of any opportunity for the parties to brief or respond to that analysis. Under that analysis, the Department would conceivably have had to apply the new rule even if the old one was not changed until after the hearing, or even after a recommended order had been presented to me. It is hard to conceive of a situation more fraught with potential for the type of irrational result against which the court in Lin wisely cautioned.
Accordingly, I grant ECUA's exceptions No. 1-27 to conclusions of law and the Department's exceptions to conclusions of law. The Recommended Order Is modified to provide that ECUA's application had received Department approval pursuant to Rule 17-610.110(2), F.A.C., prior to the effective date of the new rule and therefore is governed by former Rule 17-6.040(8), F.A.C.
Having ruled on all the exceptions, it is ORDERED:
Except as otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference.
ECUA's application is hereby denied, without prejudice to the filing of another application that meets the requirements of all applicable rules and statutes, including provision for a ground water background well from which samples may be drawn that are reasonably assured to be unaffected at all times by the effluent.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department In the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 19th day of March, 1990 in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DALE TWACHTMANN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904)488-4805
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to s 120.52 Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
3/19/90
Clerk Date
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by hand-delivery to Robert Benton, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and to Michael P. Donaldson, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by U.S. Mail to Robert W. Kievit, Esquire, 15 West Main Street, Pensacola, Florida 32501; Lester M. Westerman, 10451 Gulf Beach Highway, Pensacola, Florida 32507; James Mullins, 11001 Gulf Beach Highway, Pensacola, Florida 32507; Susan Guttman, Esquire, 11315 Seaglade Drive, Pensacola, Florida 32057; and Joseph W. Landers, Esquire, and Cindy L. Bartin, Esquire, 310 West College Avenue,Tallahassee, Florida 32302 on this 19th day of March 1990.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Telephone: (904)488-9730
| Issue Date | Proceedings |
|---|---|
| Feb. 02, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 19, 1990 | Agency Final Order | |
| Feb. 02, 1990 | Recommended Order | New rule requiring bench tests before permit issues should be given effect although testing requirement did not exists when application was made. |
