STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES R. REGAN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1844

) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing

on December 4, 1989 in Pensacola, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James R. Regan, pro se

12406 Meadson Road

Pensacola, Florida 32506

For Respondent: Richard L. Windsor

Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

Whether the August 30, 1988 application of Petitioner James R. Regan for a permit to operate a wastewater (sewage) treatment facility should be granted in that Petitioner has

provided reasonable assurances that the operation of the facility will not discharge, emit, or cause pollution in contravention of Department of Environmental Regulation standards or rules.

PRELIMINARY STATEMENT

Petitioner and the following witnesses gave oral testimony: John L. Williams, John Holt, Bobby A. Cooley, Greg

Smith, Toni Tovart, Ray Bradburn, William F. Leoffler, and Robert

1. Kriegel.

   
   

   Petitioner had marked for identification P-1, P-2 (page

   7, detached, was also admitted), P-3 (the cover page, detached, was also admitted), P-4, P-5A and P-5B, P-6, P-7A through C, P-8, P-9, P-10, P-11, P-12, P-13, P-14, and P-15. Exhibits P-5A and

   P-5B were admitted subject to the restrictions on hearsay contained in Section 120.58(1)(a) F.S.; P-6 and P-10 were not admitted. The remainder of Petitioner's exhibits were admitted in evidence.

   
   

   Respondent had three exhibits admitted in evidence.

   
   

   Official Recognition was taken of the pertinent Intent to Deny and of Rule 17-4.070 F.A.C.

   
   

   No transcript was filed, but all timely-filed proposed findings of fact have been ruled upon, pursuant to Section 120.59(2) F.S., in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. The sewage treatment plant that is the focus of this proceeding is "Weakley Bayou, Inc.," a corporation. The

      real property upon which it is located is owned by the wife of James R. Regan. Despite corporate status, Weakley Bayou, Inc. has been operated at the option and control of James R. Regan since its inception in the early 1970's. The permit application here at issue was made in Mr. Regan's name, and he has been treated as if he were the corporation throughout all stages of the permit process. Mr. Regan brought the Petition for Formal Hearing in his own name. He was also accepted as the qualified representative for himself and the corporation.

      
      

   2. "Weakley Bayou, Inc." is an aerobic gravity flow wastewater treatment plant located in Escambia County. In 1988 James R. Regan applied for a renewal of the operating permit for the facility. The Department of Environmental Regulation (DER) issued an Intent to Deny on December 16, 1988, based on agency perceptions derived from observations, monitoring of Petitioner- generated reports, and grab samples, that the facility did not meet the requirements set down in Rule 17-6 F.A.C. Specifically, the Intent to Deny focused on the following problems:

      
      

      1. A reclaimed water sample taken on December 6, 1988 revealed the facility was exceeding BOD5 (Biological Oxygen Demand) and TSS (Total Suspended Solids) limits in violation of specific condition number 17 of Permit Number D017-71682. The BOD5 was 232.8 mg/l and TSS was 1,430 mg/l.

      2. The same sampling showed the facility was exceeding 200/100 ml for fecal coliform in violation of specific condition number 17 of permit number D017-71682 and Rule 17- 6.180(1)(b)4.d., Florida Administrative Code. The fecal coliform was 79,000/100 ml.

      3. Ground water monitoring samples show the levels of nitrates in excess of 10 mg/l in

         well #l on two out of last four quarterly samples, which is in violation of Rule 17- 6.040(4)(q) paragraph 4.2, Florida Administrative Code.

      4. During the inspection on December 6, 1988, the sludge blanket in the clarifier was overflowing the weirs, solids had accumulated in the chlorine contact chamber and percolation ponds in violation of Rule 17- 6.110(3) and 17-6.180(2) (e) , Florida Administrative Code.

      5. Auxiliary electrical power is not provided as required by Rule 17-6.040(4) (c) and 17-6.110(3), Florida Administrative Code. The applicant was notified March 14, 1988, that emergency power would be required.

         
         

   3. During the period (1984-1988) that Petitioner's sewage treatment plant has been permitted by DER, it has been periodically inspected and the Petitioner's self-generated reports have been monitored. From time to time after inspections, Petitioner has been notified of pollution and

      contaminant hazards or violations pursuant to agency standards, which hazards or violations required corrections in order to retain his permit. Among these hazards and violations have been noted large sewage spills, overflows, poor equipment condition, and substandard plant operation. In most instances, Petitioner cooperated with DER and at least attempted to adjust the plant's operation to conform to the notifications.

      
      

   4. However, as of December 15, 1988, DER notified Petitioner of the following problems with the plant: sludge blanket in the clarifier overflowing the weir, solids accumulation in the chlorine contact chamber, solids accumulation in both percolation ponds, no auxiliary power on the site, and high levels of nitrates (6.9 ppm) in Monitoring well -1. DER's test of an effluent grab sample tested BOD at 232.8 mg/L and Total Suspended Solids (TSS) at 1430 mg/L. That is, samples taken by DER during an inspection indicated excessive levels of TSS, BOD, and fecal coliform, in violation of Chapter 403 F.S. and Chapter 17-6 F.A.C.

      
      

   5. Mr. Regan admitted that for approximately four

      years, broken and unrepaired pipes and fittings at his plant had caused sewage spills or overflows of approximately eight thousand gallons of sewage sludge. He contended that the surface enrichment around Monitoring Well #1 was caused by a separation of a two-inch PVC skimmer line which was corrected in March 1988.

      Although Mr. Regan established that the leak in the pipe had been repaired, the evidence does not permit a finding that this

      enrichment was solely from that source, that it will dissipate over a reasonable time, or that it has not polluted the ground water. 1/ Thus, there is no reasonable assurance that fixing the leak, by itself, protects the environment.

      
      

   6. Over a period of time, Petitioner's own groundwater monitoring reports showed excessive nitrate levels and these have worsened since late 1988, according to witness Ray Bradburn.

      
      

   7. Petitioner contended that a grab sample is not as accurate as a composite sampling. Although DER witnesses concur

      in this contention of Petitioner with regard to grab samples generally, and although one DER witness suggested that part of the December 1988 grab sample reading by itself would not cause him to deny the permit, no credible evidence disputes the accuracy of the December 6, 1988 grab sample as a grab sample.2/

      
      

   8. Petitioner admitted that it was and continues to be his conscious management decision to keep the plant's auxiliary

      gasoline powered engine locked away from the plant site so as to discourage theft and vandalism, and so as to discourage childish curiosity which might expose Petitioner to liability. He was reluctant to secure the engine on the premises as a hedge against emergency shutdowns of the plant.

      
      

   9. Mr. Regan, upon advice of outside engineers, has attempted to correct many of the cited errors and omissions. However, notwithstanding the DER's express disapproval of such a method, Mr. Regan has instructed his plant operators to curtail the input of air from the plant's blower to the sewage at night so as to create a "belching" effect designed to clear out certain wastes and thereby attempt denitrification in the clarifier. DER witnesses did not explain in any detail why Regan's belching procedure was unacceptable except that addition of an expensive denitrification unit was preferable and constituted a "reasonable assurance," whereas Mr. Regan's method had not been demonstrated to be successful in the past. Mr. Regan, who bears the burden of proof in these proceedings, did not demonstrate that his "belching" system was a reasonable assurance of denitrification or offer expert witnesses to support such a theory.

      
      

   10. This sewage treatment plant is subject to a Notice of Violation which became final on September 21, 1989. 3/

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

       
       

   12. In permit application and renewal proceedings, the burden of proof is upon the applicant. J.W.C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

       
       

   13. Herein, Petitioner failed to provide reasonable assurances based on plans, test results, installation of pollution control equipment, or other information that the operation of the plant will not discharge, emit, or cause pollution in contravention of Department standards or rules.

       
       

   14. Moreover, Petitioner is subject to a Notice of Violation, finalized September 21, 1989. Rule 17-4.070(5) F.A.C., last amended August 31, 1988 and consequently clearly applicable to this situation, provides as follows:

No permit shall be issued for an instal- lation subject to a Department notice of

violation or judicial action initiated by the Department. Upon resolution of the enforce- ment action by agreement, permit, final order, or judicial action a permit may be granted subject to the applicable require- ments of Title 17. This prohibition shall only be applicable when the enforcement action involves the same activity or air pollution source as the activity or air pollution source for which a permit is being sought. The Department shall take into consideration a permit applicant's violation of any Department rules at any installation when determining whether the applicant has provided reasonable assurances that Department standards will be met.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the pending permit application.

DONE and ENTERED this 31st day of January, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this

31st day of January, 1990.

ENDNOTES

l/ P-3 was admitted in evidence as a business record of Petitioner. It constitutes an independent engineer's assessments of causation and recommendations for correction of the problems at the plant. In hindsight, the validity of this document as a business record is questionable, however, it is couched in terms of "possibilities" and what soil samples "suggest." It is consequently vague and not credible due to that vagueness and the undersigned therefore rejects the opinions expressed therein.

2/ P-5A and P-5B were admitted subject to Section 120.58(l) (a)

F.S. These are supposedly sample analyses commissioned by Petitioner on November 15, 1989. No one associated with the laboratory which took or processed the samples testified. They are, therefore, hearsay. They are also questionable in origin

since the client listed is "Palmer Utility Service," not Petitioner or his corporation. Petitioner's reliance on these exhibits does not render them such evidence as explains or supplements Petitioner's testimony. See, Section 120.58(1) (a)

F.S. and 221-6.026(3) F.A.C. Rather, Petitioner, who is admittedly not an expert in this area, has attempted to explain the out-of-court "statements" of a proposed "expert," rather than the other way around. For all of the foregoing reasons, these exhibits cannot be relied upon for making a finding of fact. The undersigned notes, however, that P-5B also shows nitrates in excess of the state maximum standard of 10 mg/L.

3/ Mr. Regan testified to this fact and although DER did not offer documentary evidence, the pleadings of record including motions and intermediate rulings on these collateral issues constitute part of the record in this cause. See, Section l20.57(1)(b)6.a.

F.A.C. An agency may take official recognition of its own files. See, Health Quest Realty XII v. HRS, 477 So.2d 576 (Fla. 1st DCA 1985).

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1844

The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

Petitioner has failed to number anything other than pages. The following constitutes a "best effort" at cogent rulings under the circumstances.

Page 1, paragraph 1 Irrelevant, speculative, mere argument. Page 1, paragraph 2 Legal argument

Page 1, paragraph 3 Mostly argument. What constitutes fact (goes into page 2) is largely not of record in this cause.

To the extent it may be a proposal of fact upon record material, it is subordinate.

Page 2, first full Accepted that the grab sample was taken paragraph on December 6, 1988, and that by itself

it is insufficient in one witness' opinion to deny the permit. However, that single witness' opinion is not controlling in a de novo proceeding and therefore subordinate. See FOF 4-8. The remainder is argument only.

Page 2, paragraph 2 Subordinate, unnecessary, or mere (goes into page 3); argument except to the degree accepted

page 3, first full and modified to conform to the record in paragraph FOF 4-8.

Page 4, paragraph 1 Irrelevant, mere argument; in parts cumulative

Page 4, paragraph 2 Rejected as not supported by the greater (goes into page 5) weight of the evidence.

Page 5, paragraph 1 Mere argument. Respondent' s PFOF:

1, 3, 4, and 5 are accepted.

2 is accepted only to the degree that it is relevant.

COPIES FURNISHED:

James R. Regan 12406 Meadson Road

Pensacola, Florida 32506

Richard L. Windsor Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399

Docket for Case No: 89-001844

Orders for Case No: 89-001844