STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEONARD D. CORDES, )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 89-4461
) OGC CASE NO. 89-0845 STATE OF FLORIDA, DEPARTMENT )
OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Following the provision of notice, a formal hearing was conducted on April 30, 1990. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.
APPEARANCES
For Petitioner: Baya Harrison, Esquire
400 North Meridian Street Tallahassee, Florida 32301
For Respondent: Michael P. Donaldson, Esquire
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
This case concerns the entitlement of Petitioner to be granted a permit to operate a .0075 MGD wastewater treatment facility with reclaimed water applied through spray irrigation. See Chapter 403, Florida Statutes, and Chapter 17- 610, Florida Administrative Code.
PRELIMINARY STATEMENT
This Recommended Order is being entered upon consideration of the transcript of proceedings and exhibits admitted into evidence. Petitioner offered the testimony of Dr. S. K. Nayak. Respondent presented the testimony of Norman Morrissette and Bobby A. Cooley. Joint Exhibit No. 1 together with Petitioner's six exhibits and Respondent's two exhibits have been examined in preparing the Recommended Order.
Under the initial schedule established for filing proposed recommended orders, those proposals would have been due on May 21, 1990. Petitioner, with Respondent's agreement, asked for an extension until May 25, 1990. That extension was granted. The parties timely filed proposed recommended orders.
They have been considered. Suggested fact-finding in the proposed recommended orders is addressed in an Appendix to this Recommended Order.
Respondent submitted for official recognition a copy of Chapter 17-610, Florida Administrative Code, which has been accepted. In addition, Petitioner by an uncontested motion of May 29, 1990, as received on June 7, 1990, has asked that correspondence of August 29, 1988 from Otto Prochaska, P. E., directed to Linda Blackshear, Administrator for Jefferson Nursing Center, be received. That correspondence is admitted as evidence.
FINDINGS OF FACT
Jefferson Nursing Center is located in Jefferson County, Florida. The 60-bed nursing center has a package treatment plant at the site for treatment of wastewater. The sixty residents and 15 employees use that facility. The plant utilizes microorganisms for treatment of wastewater in an extended aeration tank. The wastewater is then placed in a settling chamber where the precipitant is removed and taken to another location. The wastewater is then put in another tank for disinfection by use of chlorine for a period of 30 minutes or more. That wastewater is then reclaimed through spray irrigation.
The capacity of the facility is .0075 MGD. The storage capacity of wastewater during inclement weather available in the chlorinating tank is .0051 MGD or 16 hours. The acreage which undergoes watering through spray irrigation adjacent to the facility is between 2.8 and 3.3 acres in size.
The plant had been issued an operation permit on October 4, 1983 in accordance with a regulatory scheme which is basically the same as at present. That permit expired on September 20, 1988. The package plant had not changed in its design and function between 1983 and 1988.
On August 15, 1988, an application was made to renew the operating permit. That application was under the name of Linda Blackshear, administrator at the nursing home. This renewal was one which occasioned an examination of the merits of the entitlement to a new operating permit. It was not a circumstance in which the nursing home would have been entitled to the issuance of a new operating permit upon the payment of fees. This application was made upon a form known as the "short form." A copy of that application may be found as Petitioner's Composite Exhibit No. 2 admitted into evidence.
On August 29, 1988, O. Prochaska, P.E., sought additional information from Ms. Blackshear concerning the application. Mr. Prochaska was the Water Facility Program Administrator on that date. The correspondence had attached the list of things which Respondent desired the nursing home to provide in support of the application. This correspondence was submitted post-hearing and no testimony was presented at hearing or in depositions concerning the reason for dispatching the request for additional information or any explanation made of responses that may have been offered to that request. There was some delay in providing information about the application leading to its rejection on April 17, 1989.
Dr. S. K. Nayak, a licensed engineer in Florida, was responsible for submitting a "long form" application. This is seen as a substitution for the "short form" application.
A copy of the "long form" application may be found as Petitioner's Composite Exhibit No. 3. It is processed in the name of Leonard D. Cordes for
the nursing home. It is dated June 16, 1989. The request for permit still pertains to the package plant that existed under the 1983 operating permit and as envisioned by the "short form" application dating from 1988. The "long form" permit application was denied on July 14, 1989. A copy of the notice of denial may be found as Joint Exhibit No. 1, admitted into evidence. It outlines six areas in which the Respondent feels the application is deficient. They form the basis of the dispute between the parties. They are as follows:
Adequate assurance has not been provided to insure that the design hydraulic loading rates shall be maintained as required by Rules 17-610.423 Florida Administrative Code.
The reclaimed water distribution system is not designed in accordance with sound engineering practice as required by Rules 17- 610.400, 17-610.419 and 17-610.423, Florida Administrative Code.
Appropriate warning signs are not posted around the site as required by Rule 17- 610.418, Florida Administrative Code.
An adequate reclaimed water storage system is not provided as required by Rule 17-610.414, Florida Administrative Code.
Adequate buffer zones between the edge of the wetted area and the site property line are not maintained as required by Rule 17- 610.421(2) Florida Administrative Code.
An adequate buffer zone is not provided from the edge of the wetted area to an existing potable water supply well as required by Rule 17-610.421(3), Florida Administrative Code.
On July 27, 1989, Respondent received a request for formal hearing to consider Petitioner's entitlement to an operating permit for the wastewater treatment package plant. The case was then referred to the Division of Administrative Hearings for hearing.
Concerning the first two points in the stated intent to deny, which pertain to the design hydraulic loading rates and overall engineering principles that are involved in the spray irrigation, the engineering report supporting the application mentions spray heads as located on an attached drawing. The report says that the design is established to provide uniform application of the effluent on the field. Dr. Nayak authored this report. While the attached drawing shows the location of the spray heads it does not show the disbursement pattern of those devices. There are two spray heads and one distribution line which is a PVC pipe with holes in it. That pipe unlike the above-ground spray heads introduces the water into the ground through the perforations in the pipe at ground level and soaks that water into the ground. That system is moved from place to place in the process. At present the two above-ground spray heads are not used very frequently. This is in deference to what the applicant perceives to be complaints by a neighbor. Those two above-ground spray heads only have limited movement potential as to physical location. The flexible arm on those devices is short compared to the PVC pipe arrangement which has a large hose as part of that device. Use of the hose and PVC pipe, according to Dr. Nayak, is not only for purposes of satisfying the complaining neighbor but also responds to the Department's choice. The person from the Department who purportedly
advised the use of the hose and PVC pipe as a means to satisfy the neighbor's concerns and Respondent's concerns is Bobby Cooley. He is a Program Administrator for Water Facilities in Respondent's Northwest District Office. He does not recall having made a specific suggestion that Petitioner use the hose and PVC pipe method for effluent distribution in lieu of the above-ground spray heads. What is significant is that both Dr. Nayak and Respondent's engineering experts testified at hearing that the use of the PVC pipe and hose
method is not a reasonable choice for effluent distribution. That method leaves ponds and presents potential problems with nutrient loading in that it does not uniformly distribute the effluent. This ponding effect had been observed by Respondent's employee Norman Morrissette, an engineer. On one visit before the permit was denied he saw a soaker hose being used. On April 12, 1990 there was a garden hose with a nozzle. That garden hose with a nozzle was not being used but was demonstrated for Mr. Morrissette. On April 12, 1990, it appeared that the garden hose had been sitting in the same place for a period of time because there was a tear drop shape around the end of the garden hose which was extremely green compared to other vegetation a short distance away which was brown in color and almost dead. In summary the garden hose method is not uniform and promotes nutrient loading.
Robert R. Reining, Jr., Supervisor of the Domestic Wastewater Section in the Division of Water Facilities for Respondent, who is a civil engineer, established that if the distribution is not uniform there is a problem with the runoff of effluent instead of nutrient absorption through plant uptake. Consequently, there are two potential problems. The first problem is associated with ponding in which the plant life in that area is not allowed to uptake the nutrients sufficiently as they percolate through the soils. The second relates to nutrient runoff in a circumstance where the plants do not have time to uptake the nutrients.
Mr. Morrissette pointed out that the application with engineering data, the "long form", gave little information about the distribution of effluent. He conceded that the type of crop that was being irrigated, which was native grasses, would be sufficient if the nutrient loading was uniformly distributed.
Dr. Nayak did percolation tests and confirmed that rates of percolation in the irrigated field are very high. That observation is meaningless without knowing that there is a uniform distribution system in place and that proper buffer zones are maintained. Likewise, the potential for nutrient assimilation is meaningless without having uniform distribution and appropriate buffer zones. Therefore, Dr. Nayak's observations that the grass will uptake the nutrients on an acceptable basis measured in pounds per year is not compelling.
Although Dr. Nayak testified that a 100 foot buffer zone at the property boundary could be instituted by adjustments to the above-ground spray heads, he does not believe that that is necessary in this instance and refers to the permit grant in 1983 as further evidence of the reasonableness of his opinion.
Dr. Nayak indicated that the spray heads are now oriented in such a fashion as to distribute the effluent over the entire acreage to include a possible 100 foot buffer zone. The buffer zone at the perimeter of the property is to protect adjacent properties from aerosol drift. As explained, those spray heads could be reoriented to provide a 100 foot buffer zone. To do this would mean that a small portion of the acreage was wet all the time. The water would
then soak down into the ground in the remaining 100 feet. Under those circumstances the percolation rate in the top soil is very high and deeper in the stratification the percolation rate is slower. The lower percolation rate is 48 inches per hour in a setting where the amount of water applied is three feet per year. Consequently, per Dr. Nayak's observations the percolation rate does not present a critical situation. This testimony tends to clarify the possibilities of using the above-ground spray heads for distribution of the effluent and maintaining the necessary buffer zone. On balance, that arrangement can be achieved with the existing above-ground spray head through reorientation to provide the necessary 100 foot buffer zone. This overcomes the lack of specificity in the engineering report that supported the "long form" application. However, there are other problems with this operation.
When Mr. Morrissette made the site visits that were mentioned previously, warning signs to alert the public that the field was undergoing spray irrigation with reclaimed effluent were not erected. Those signs are important because they alert the public to possible health risks in this form of spray irrigation. By contrast, Dr. Nayak has seen the signs displayed during his numerous visits to the site. This problem could be attended by requiring frequent checks to insure that the warning signs were in place.
Both Morrissette and Reining point out the inadequacies of the reclaimed water storage system. Requirements are that a minimum of 3 days storage capacity is needed. This translates to .0225 MGD, which is three times the average daily capacity of .0075 MGD. The available storage at the facility is .0051 MGD and 16 hours. The system's capacity is based upon an assessment made by Mr. Morrissette in measuring the actual storage area as well as the concession which Dr. Nayak makes concerning the capacity as a measurement of gallonage and retention time. Dr. Nayak presented the prior numbers on storage capacity and retention time. Mr. Reining also inspected the chamber and discovered that contrary to Dr. Nayak's earlier contentions through a prior application the chamber would not provide storage for three days.
Mr. Morrissette establishes that the purposes for having three days storage capacity in the reclaimed water storage system is to address those days where it is not possible to apply the reclaimed water on the irrigation site due to inclement conditions.
Respondent used the design flow capacity of the facility to address the storage requirements associated with the reclaimed water storage system. If resort was made to the 10-year recurrent storm event as a method of describing the needed storage capacity, that could increase the requirements beyond .0225 MGD.
In addressing concerns about the adequacy of the reclaimed water storage system, Dr. Nayak takes comfort in the fact that the Respondent had permitted the system in 1983 with that same storage capacity. He likewise is comforted by the fact that his review of the operations, maintenance and performance data over a period of more than five years leads him to believe that the storage is adequate at this specific site. The historical data from his observation had not indicated a time when the 16 hour storage capacity was inadequate.
There is a potable water well at the nursing home which is 200 feet from the spray irrigation field. Based upon Dr. Nayak's research of Respondent's records he discovered that the potable water well is a deep well. It was also established that on September 2, 1983, Robert V. Kriegel, District
Manager, Northwest District, Department of Environmental Regulation exempted the nursing home from the requirements to establish monitoring wells in that Mr.
Kriegel represented that no shallow water supply wells were found within 1,000 feet of the project site. A copy of the request for exemption and the exemption letter may be found as Petitioner's Composite Exhibit No. 4, admitted into evidence.
On the topic of the proximity of potable water supply well to the spray irrigation field, Dr. Nayak believes that the deep water well intersects the deep water supply aquifer and that any portion of the soil stratification above the aquifer is sealed. Thus he believes pollution does not have access to the groundwater table and contamination of the portable water well by the use of spray irrigation will not occur. He refers to the past decision to exempt the requirement for monitoring wells as recognition of a lack of concern by Respondent that the potable water supply will be contaminated.
Mr. Morrissette in his criticism of the "long form" application and its supporting data said that he was unable to ascertain whether the well in question was deep or not and said that a soil analysis by a competent soil engineer or a well log would have resolved that question. Notwithstanding the lack of information in the application the issue has been resolved by proof at hearing. The facts established that it is a deep well.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes.
The applicant has the burden to prove entitlement to the issuance of the permit. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1978).
Consideration of this permit request is in accordance with Sections 403.021, 403.051, 403.061, 403.062, 403.085, 403.086, 403.087 and 403.088, Florida Statutes, as they pertain to domestic wastewater facilities. Further authority is set forth in Chapter 17-610, Florida Administrative Code, which regulates reuse of reclaimed water through land application.
Petitioner must give reasonable assurances that the methods employed will not violate applicable statutes and rules.
Respondent is granted the authority to examine this application for permit dating from 1989 on its merits. The fact that the nursing home was granted an operating permit in 1983 does not bind the Respondent in this permit application process. The review related to the 1989 permit application is independent of that responsibility in 1983. Nothing that the Respondent had done in considering the permit application dating from 1989 estops Respondent from denying the application. See State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). Even if one were to assume that Mr. Cooley stated a preference for use of the hose and PVC pipe method to distribute the effluent on the irrigated plot, that suggestion has no influence on the problems with the sizing associated with the reclaimed water storage system and the proximity of the irrigation field to the potable water supply. Both of those items are material deviations from requirements set forth in the rules and should cause the permit application to be rejected. The circumstance related to the hose and PVC pipe method can be remedied by proper adjustments to the above-ground spray heads whatever the opinion held by Mr. Cooley. The evidence at hearing did not
rectify the problems associated with the sizing in the reclaimed water storage system and the proximity of the spray irrigation system to the potable water supply.
The reclaimed water storage system fails to comply with Rule 17- 610.414(2)(c), Florida Administrative Code, which states:
At a minimum, system storage capacity shall be the volume equal to three times that portion of the average daily flow of the reuse capacity for which no alternative reuse or disposal system is permitted.
This capacity is 16 hours, far less than the three days required.
The irrigation field fails to comply with the setback distances associated with the potable water supply which are set forth in Rule 17- 610.421(3), Florida Administrative Code, which states:
A 500-foot setback distance shall be provided from the edge of the wetted area to potable water supply wells that are existing or have been approved by the Department or by the Department of Health and Rehabilitative Services (but not yet constructed): . . .
No mention is made of the nature of the potable water well being a deep well or shallow well. Therefore, it is concluded that the setback requirements pertain to all potable water supply wells, deep or shallow.
The fact that the Respondent did not require monitoring wells to examine the influence of the operation of the sewage treatment plant with its spray irrigation process as it pertains to the potable water supply in 1983 does not relieve the Petitioner of the necessity to address that matter in the application dating from 1988. This is especially true given that the spray irrigation process takes place within the 500 foot buffer zone, namely within
200 feet. Therefore, it was incumbent upon the Petitioner to present convincing evidence that the spray irrigation process would not have an adverse influence on the potable water supply. Since the potable water supply is within the buffer, this would constitute a request for exemption from the requirements set out in Rule 17-610.421(3), Florida Administrative Code. An exemption was not requested. More importantly, even if the exemption could be considered as part of this case, Petitioner failed to make a contemporaneous explanation of the process which would permit exemption from the rules' requirements. Reliance upon the agency's choice to grant an exemption in 1983 not being sufficient, then one must examine Dr. Nayak's general statement that he does not believe that the potable water supply is at risk. His explanation does not constitute sufficient proof about the likelihood of contamination to warrant a recommendation for exemption.
The problem associated with the sizing of the reclaimed water storage system as it would respond to circumstances where a high incidence of rain would cause the project not to respond adequately to the requirement set out in Rule 17-610.410, Florida Administrative Code, related to waste treatment and disinfection and to the requirement for hydraulic loading rates set out in Rules 17-610.423, Florida Administrative Code. Were it not for the reclaimed water
storage system problem, the requirements set forth in Rule 17-610.419, Florida Administrative Code, related to application/distribution systems could be met.
The problem experienced with the warning signs could be rectified by the frequent patrolling in the area where the warning signs are placed. Thus, Rule 17-610.418, Florida Administrative Code, would be complied with.
Upon the consideration of the facts and the conclusions of law, it is, recommended that a Final Order be entered which denies the permit to operate a
.0075 MGD wastewater treatment facility with reclaimed water applied by spray irrigation.
RECOMMENDED this 19th day of June, 1990, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 19th day of June, 1990.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4461
The following discussion is given concerning the proposed facts of the parties.
Petitioner's Facts
All sentences in Paragraph 1 save the second sentence are not necessary to the resolution of the facts. The second sentence is subordinate to facts found.
Paragraph 2 is subordinate to facts found.
In Paragraph 3 the suggestion by Dr. Nayak that he does not believe that the treatment plant is polluting at present begs the question. What is incumbent upon Petitioner is a requirement that the facility meet the rules. It does not. Likewise, remarks attributable to Mr. Reining to the effect that he saw no problems at the time of his visit does not supply an adequate answer to address reasonable assurances.
Paragraph 4 in discussing the opinion held by Mr. Morrissette about whether he would have permitted operation in 1983 is not relevant. What is relevant is whether the most recent application should be granted. It should not.
Paragraph 5 is subordinate to facts found except to the extent that it suggests that reasonable assurance has been given. In that respect, it is contrary to facts found.
Paragraph 6 is recitation of testimony. It is not fact-finding.
Paragraph 7 is unacceptable in that it does not address inclement conditions. It also fails to recognize that the present disposition of the effluent is not uniform.
Paragraph 8 has been addressed by consideration of the testimony de novo. This clarified that the purposes of the final hearing was to consider the case de novo as opposed to appellate review of the agency's preliminary response to the application.
Likewise, in Paragraph 9 although it would have been advantageous to have the wetted area better described in the attached map, that was clarified at hearing and has been reported in the fact-finding set forth in the Recommended Order.
As to Paragraph 10 the explanation of the use of Rule 610.423, Florida Administrative Code, is set out in the fact-finding and conclusions of law in the Recommended Order and puts to question the applicant's response to the requirements in that rule.
As to Paragraph 11 the reference to Rule 610.423, Florida Administrative Code, is not the critical rule that pertains to potable water wells. That requirement is announced at Rule 17-610.421(3), Florida Administrative Code.
Concerning Paragraph 12 in the same way that it would have been helpful for the applicant to designate the wetted area, it would have been helpful for the [agency to remind the applicant to make that designation. That failing does not preclude consideration of those matters at hearing and that was done.
Paragraph 13 is subordinate to facts found with the exception of reference to Mr. Morrissette in his lack of licensing in Florida. That lack of license does not preclude his testimony.
Paragraph 14 is subordinate to facts found with the exception that suggestion by Dr. Nayak that there is an even distribution by the use of a hose is rejected.
Paragraph 15 as described in the fact-finding the resort to the above- ground spray heads can be had absent problems with the sizing in the reclaimed water storage system.
Paragraph 16 is addressed in the Recommended Order.
Paragraph 17 is addressed in the Recommended Order as is Paragraph 18. Paragraph 19 is subordinate to fact found.
The reference at Paragraph 20 to the exemption set out in Rule 17- 610.414(1), Florida Administrative Code, was not spoken to at hearing. The project does not contemplate the use of an alternative system which discharges surface water through deep wells.
Paragraph 21 is contrary to facts found. The requirements in the rules are not site specific.
Concerning Paragraph 22, while DER issued a permit under similar conditions in 1983 that does not preclude them refusing to issue the permit in 1988.
Concerning Paragraph 23. The issuance of the permit in 1983 is seen as not being an exemption. It is seen as an oversight.
Paragraph 24 is not necessary to the resolution of the dispute. Paragraph 25 is subordinate to facts found as is Paragraph 26.
Paragraph 27 has been spoken to in the Recommended Order as has Paragraph
28.
Concerning Paragraph 29, while the application does not indicate that the
buffer zone must be drawn per se, it could be fairly inferred that the designation is contemplated by the rule which requires the establishment of the buffer zone.
Concerning Paragraph 30 see discussion of Paragraph 29. Paragraph 31 is subordinate to facts found.
Concerning Paragraph 32, whatever the application form may say the requirements of Rule 17-610.421, Florida Administrative Code, must be complied with. The same response pertains to Paragraph 33. The suggestion that the exemption from monitoring that was granted on September 2, 1983, relieves the applicant of the requirements of Rule 17-610.421, Florida Administrative Code, is rejected.
Respondent`s Facts
Paragraphs 1-27 are subordinate to facts found, with the exception that any suggestion that the applicant is limited in its proof to those matters set forth in the application is rejected. The applicant is allowed to present necessary evidence in furthering the request for permit at final hearing.
Paragraph 28 is not accepted in that the evidence indicated that the soaker hose was the principle method but not the sole method of effluent distribution.
In Paragraph 29 it is acknowledged that the Petitioner claims that the change in the method of distribution was at the instigation of a neighbor's complaint. It is also acknowledged that there was no reference to a written communication from the Respondent to the Petitioner concerning the use of the alternative means of distribution. The problems associated with this communication are spoken to in the Recommended Order and they would attend the suggestions made in Paragraph 31.
As set forth in Paragraph 32 it is acknowledged that the employees cannot create the authority for changes. Nonetheless, they may mislead an applicant into a course of conduct in pursuing the application. Any problems of that sort associated with this project have addressed in the Recommended Order.
Paragraphs 33-56 are subordinate to facts found with the exception that suggestion to the effect that the application constitutes the sole basis for considering the entitlement to permit is rejected in favor of a consideration of evidence presented at the hearing de novo.
The discussion in Paragraphs 57-59 as to the nature of the potable water well is acknowledged. The exemption from monitoring in 1983 does not preclude the agency's ability to examine the issue in the 1989 application. It is found that the potable well is a deep well.
In Paragraph 60, while it is acknowledged that the preliminary intent to deny was based upon an examination of the permit in association with applicable statutes and rules, the decision reached in this Recommended Order was based upon the evidence presented at hearing. That decision is not reached in an attempt to appease concerns by neighbors as alluded to in Paragraph 61.
Paragraph 62 is considered to be argument.
COPIES FURNISHED:
Steven K. Hall, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
Baya Harrison, Esquire
400 North Meridian Street Tallahassee, FL 32301
Dale H. Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
LEONARD D. CORDES,
Petitioner,
vs. DOAH Case No. 89-4461
OGC Case No. 89-0845
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On June 19, 1990, a Hearing Officer from the Division of Administrative Hearings submitted to the Department of Environmental Regulations (Department) and Petitioner Leonard D. Cordes (Cordes) his Recommended Order, a copy of which is attached as Exhibit A. Cordes timely filed his exceptions to the Recommended Order on July 5, 1990. The Department filed a timely response to Cordes's exceptions. The matter then came before me as Secretary of the Department for final agency action.
BACKGROUND
This proceeding arose from Cordes's seeking a permit to operate a wastewater treatment plant to serve a nursing center that he owns in Jefferson County. Sixty residents and fifteen employees at the nursing center use the existing package treatment plant, which treats the wastewater from the center, then reclaims it through spray irrigation. Cordes had previously received a permit for the facility in 1983. To renew his permit, he first filed a short form application on August 15, 1988. After he failed to respond to the Department's request for additional information about that application, the Department denied the application on April 17, 1989. Cordes then filed a second application for renewal of the same permit, using the long form, on June 14, 1989. The Department denied the second application on July 14, 1989, Setting forth six grounds for denial. On July 27, 1989, Cordes timely filed a petition for an administrative hearing on the denial.
On April 30, 1990, a Hearing Officer from the Division of Administrative Hearings held a formal administrative hearing in this matter. After both parties Submitted proposed recommended orders, the Hearing Officer found that the application was deficient in several respects. Specifically, he found that Cordes's method of spray irrigation (including the use of a garden hose) causes ponding and problems with nutrient loading because it does not uniformly distribute the effluent. He found that the Storage capacity of the treatment facility is only two-thirds of the average daily flow (or sixteen hours of storage capacity), rather than three times the average daily capacity (or three days of storage capacity). He found that a potable water supply well is located only 200 feet from the spray irrigation field. He concluded that the sizing of the storage system and the proximity of the irrigation field to the potable water supply well were material deviations from the requirements of the applicable rules. He also concluded that there was no basis for holding the Department equitably estopped from denying the permit application. Accordingly, he recommended denial of the permit.
RULINGS ON EXCEPTIONS TO FINDINGS OF FACT
The exceptions filed by Cordes are deficient either in lacking materiality or in failing to cite to any Support in the record. The Department cannot substitute its interpretation of the facts unless a review of the whole record shows that the findings made by the Hearing Officer are not supported by competent and Substantial evidence. See, e.g., Tuveson v. Florida Governors Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987). A review of the record in this case shows that, with one exception, competent and substantial evidence does support each of the findings of fact to which Cordes takes exception.
Exception 1 objects that contrary to the finding in paragraph 5 of the Recommended Order, Cordes submitted the information requested by the Department,
on time. The exception also urges that the Department misled Cordes, because the additional information requested by the Department to complete the first application (the short form) for renewal differed from the bases ultimately relied on by the Department in denying the application. The Hearing Officer found that the Department had denied the first application for renewal because of a delay in providing the additional information. Cordes points to no evidence in support of his exception to the finding that there was a delay. The transcript of the hearing in this matter reveals that Cordes's own witness admitted that there was a delay in providing the requested information, leading to the denial of the short-form application and a request for submittal of the long-term application, instead. As for the charge that the Department misled Cordes, Exception 1 confuses the two permit proceedings. The request for information on the short-form application is irrelevant to the denial of the long-form application at issue. The alleged discrepancy between the additional information requested and the bases for ultimately denying the application is also immaterial. The Department cannot estop itself from denying an application on one ground (on which the information originally submitted with the application is adequate) merely by requesting additional information on another ground. See generally State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). I therefore reject all of Exception 1.
Exception 2 attacks the findings in paragraphs 9-12 of the Recommended Order on pollution problems resulting from Cordes's Spray irrigation System. Cordes argues that because the Department (and a complaining neighbor) allegedly suggested that Cordes change his method of spray irrigation to a garden hose and sprinkler system, the Department should be estopped from denying the permit.
The testimony on whether a Department representative suggested the use of a garden hose is conflicting. Likewise, although Cordes's engineer testified that no pollution problems had resulted from using the garden hose for Spray irrigation, the engineers from the Department testified that ponding and consequent nutrient-loading problems would result from that method and had actually been observed at the facility in question. Because competent Substantial evidence Supports the findings in paragraphs 9-12 of the Recommended Order, I will not disturb them. As for the estoppel argument, that is addressed below, in the rulings on the exceptions to conclusions of law. I therefore must reject Exception 2.
I accept Exception 3, which challenges the Hearing Officer's finding in paragraphs 15-18 of the Recommended Order that Cordes' expert witness stated in the first application for permit renewal that the system had a storage capacity of three days, yet testified at the hearing that the Storage capacity was Sixteen hours. Neither the exception nor the finding, however, is material to the decision in this case, because other grounds form the basis for the decision, as explained below.
RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW
Cordes's exceptions to the conclusions of law fare no better. At the outset, I note that Cordes did not number his exceptions to the conclusions of law. I shall take them up in the order in which Cordes presented them. The first such exception to the conclusions of law conclusorily asserts that the decision in State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981), is distinguishable but fails to identify the specific basis for distinguishing it. See Fla. Admin. Code Rule 17-103.200(1) (requiring that the grounds for exceptions be bet forth with particularity). The Hearing Officer cited the Anderson case in support of his conclusion that the Department did nothing to estop it from denying the application at issue. The court in Anderson noted that
estoppel will be applied only rarely to the state and only in exceptional circumstances. The court set forth the general test for finding such an estoppel, requiring (1) a representation of material fact contrary to a position asserted later by the person or entity to be estopped, (2) reasonable reliance on that representation by the person claiming the estoppel, and (3) detriment to that person as a result of relying on the representation. Id. at 398. The court specifically pointed out that the state cannot be estopped through mistaken statements of the law. Id. (citing Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA), appeal dismissed, 378 So.2d 345 (Fla. 1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla.
1978)). Even assuming (contrary to the finding of the Hearing Officer supported by competent substantial evidence) that a representative of the Department told Cordes at some point that the use of a garden hose would satisfy the legal requirements for spray irrigation as asserted by Cordes, that mistaken statement of law would provide no basis for estoppel. Moreover, the inadequate storage capacity of the system and its proximity to a potable well provide other grounds that require disapproval of the application. In any event, the complaint that the Department misled Cordes is contrary to the Hearing Officer's well-supported findings of fact. I reject this exception.
Cordes then attacks the Hearing Officer's conclusion of mixed fact and law that the evidence presented by Cordes at the hearing did not overcome the showing of the problems associated with the lack of sufficient capacity of the storage system and the proximity of the irrigation field to a potable well.
Cordes argues that the Department allows an exemption from the storage capacity requirement in some circumstances and implicitly granted Cordes such an exemption by approving the permit for the facility in 1983. But the record does not show that Cordes ever requested an exemption or even addressed the issue at the hearing. Moreover, the provision of exemptions by rule for applicants in general (who comply with the requirements for the exemption) does not demonstrate the adequacy of the storage system at Cordes's facility. Nor does the granting of a permit for the facility in 1983 necessarily imply that the Department granted any exemption for the facility. Rather, the Department may well have made a mistake of law in issuing the permit then without addressing the question of an exemption. On the record before me, and in light of the
well-settled law as explained above, I cannot conclude that Cordes has shown any basis for estopping the Department on this issue. The complaint by Cordes that the Department never advised him that it would require a larger storage tank until he received the permit denial letter overlooks the existence of the rule requiring three days storage capacity. See Fla. Admin. Code Rule 17- 610.414(2)(c). The complaint that the Department did not request additional information on this point is immaterial. The information submitted with the permit application and confirmed at the hearing showed clearly that the storage capacity (sixteen hours) failed to satisfy the rule, in the absence of an exemption. I reject the exception to the Hearing Officer's conclusion on the adequacy of the storage capacity of the facility.
Likewise without merit is' Cordes's exception to the Hearing Officer's conclusion that the spray irrigation field is located too close to a potable well to meet the requirements of rule 17- 610.421(3) of the Florida Administrative Code. The evidence showed that the field is only 200 feet from a potable well. Cordes's complaint that the application form did not request information about the proximity of the field to potable wells but only to shallow water supply wells of any kind is immaterial. Regardless of the form of the application, an applicant must meet the requirements of the rules to show entitlement to a permit. The Department did not deny the application for lack of information but for lack of a sufficient buffer zone between the irrigation
field and the potable well. The information submitted was sufficient for the Department to determine that the facility would not meet the buffer zone requirement. Without explication, Cordes quotes from a letter granting his nursing center an exemption from monitoring requirements in 1983. Cordes fails to show the relevance of that exemption from monitoring to the adequacy of the buffer zone in question, given the specific requirements of rule 17-610.421(3). I therefore reject this final exception.
CONCLUSION
Having ruled on all the exceptions, it is ORDERED that
Except as otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated here by reference.
Cordes's permit application is denied.
NOTICE OF RIGHTS
Any party to this Final Order has the right to seek judicial review of this order under section 120.68 of the Florida Statutes by filing a notice of appeal under rule 9.110 of the 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 thirty days from the date when this order is filed with the Clerk of the Department.
DONE AND ORDERED on this 2nd day of August 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
CERTIFICATE OF SERVICE
I CERTIFY that a true copy of the foregoing was mailed to Charles C. Adams, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and Baya Harrison, Esq.,
400 North Meridian Street, Tallahassee, Florida 32301, on this 3rd day of August 1990.
Timothy A. Smith Assistant General Counsel
Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Jun. 19, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 02, 1990 | Agency Final Order | |
| Jun. 19, 1990 | Recommended Order | Denied request for permit for wastewater plant because too close to potable water supply, problem of size of reclaimed water storage system. |
