STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELCIE J. SUTO, CAROL B. RILEY, JOHN E. ) MONSEES, CRAWFORD SOLOMON, KAREN M. ) ENGLISH, and MARILYN NEHRING, )

)

Petitioners, )

)

v. ) CASE NO. 91-2722

) CELEBRITY RESORTS, INC., and STATE OF ) FLORIDA DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 3 and 4, 1991, in Ocala, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioners: Delcie J. Suto, Pro Se

2400 N.W. 165th Street Citra, Florida 32113

Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, Florida 32113

Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, Florida 32113

For Respondent William L. Townsend, Jr. Celebrity Attorney at Law Resorts, Inc.: Post Office Box 250

Palatka, Florida 32178-0250

For Respondent

DER: Douglas H. MacLaughlin Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

STATEMENT OF ISSUES

The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.

PRELIMINARY STATEMENT

John E. Monsees, Karen M. English, and Marilyn Nehring did not appear at the hearing held on June 3 and 4, 1991. They were dismissed as Petitioners based on the failure to appear. That dismissal is incorporated into and made a part of this Recommended Order.

The remaining Petitioners, Delcie J. Suto, Carol B. Riley, and Crawford Solomon, appeared and individually represented themselves. Suto presented her own testimony and that of Darlene Weesner, George Michael Thompson, and Christianne Ferraro. Riley presented her own testimony and Solomon presented his own testimony. The Petitioners collectively presented the testimony of Douglas Lee Smith. Petitioners' Exhibits 1-6 and Solomon Exhibit 1 were admitted in evidence.

Celebrity presented the testimony of Carol B. Riley, George Michael Thompson, John Daniels, and Dwight T. Jenkins. It recalled Daniels and presented the testimony of Devo Seereeram on rebuttal. Celebrity's Exhibits 1-5 were admitted in evidence.

The Department of Environmental Regulation (DER) presented the testimony of Christianne Ferraro and offered no exhibits. Joint Exhibits 1-3 were also admitted in evidence.

The transcript of the proceedings was filed on June 26, 1991. The parties had until July 8, 1991, to file their proposed findings of fact and conclusions of law. DER and Celebrity timely filed proposed recommended orders.

Petitioners filed no proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

Proposed Project

1. Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water.

   
   

2. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse.

   
   

3. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake.

   
   

4. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of

   this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake.

   
   

5. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation.

   
   

6. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order.

   
   

   Sewage Treatment Plant (STP)

   
   

7. The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection.

   
   

8. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate.

   
   

9. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood.

   
   

10. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond.

    
    

11. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator.

    
    

12. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill).

    
    

13. There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions.

    
    

14. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation.

    Effluent Disposal System (Spray Irrigation System)

    
    

15. Phase I of the effluent disposal system (spray irrigation system) is

    3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I.

    
    

16. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down.

    
    

17. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake.

    
    

18. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week.

    
    

19. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake.

    
    

20. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast.

    
    

21. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield.

    
    

22. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property.

    
    

23. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state.

    
    

24. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation.

25. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer.

    
    

26. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer.

    
    

27. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected.

    
    

28. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow.

    
    

29. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds.

    
    

30. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake.

    
    

31. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules.

    
    

    Standing

    
    

32. Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water.

    
    

33. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake.

    
    

34. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

36. Petitioners Monsees, English, and Nehring are dismissed since they neither appeared nor presented evidence at the final hearing in this matter.

    
    

37. It is questionable whether Petitioners Suto, Riley, and Solomon established that if this proposed facility does not meet DER standards they could suffer injury of sufficient immediacy to entitle them to a Section 120.57 hearing, and that their potential injury is of a type this proceeding is designed to protect. See Agrico v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 3rd DCA 1981). However, Celebrity and DER have conceded standing in their proposed orders. Therefore standing issues need no further resolution.

    
    

38. To qualify for a permit, the permit applicant, Celebrity Resorts, Inc., must provide reasonable assurance that the proposed facility will not violate applicable DER rules. Rules 17-04.030 and 17-04.070(1), Florida Administrative Code.

    
    

39. The specific rules applicable to STP's are in Part II of Chapter 17- 600. The minimum STP treatment requirements for facilities such as proposed by Celebrity are in Rule 17-600.420(1)(c). Secondary treatment is required, which requires 90% removal of CBOD5 (chemical-biological oxygen demand) and TSS (total suspended solids) from the sewage and appropriate disinfection and pH control.

    
    

40. The specific rule criteria for spray irrigation systems as proposed by Celebrity are in Rule 17-600.530 and Chapter 17-610, Part II (slow rate land application with restricted public access). These criteria require, among other things, that the effluent being applied to the land has received secondary treatment and basic disinfection and pH control.

    
    

41. Celebrity's proposed facility must not violate DER water quality standards. Regarding ground water, Celebrity must comply with Chapter 17-3, Part II, and not cause violations of minimum criteria or primary and secondary drinking water standards as contained in Rule 17-22.104. Regarding the nearest surface water, Orange Lake, the proposed project must not cause violations in Class III water quality criteria (Rule 17-302.560) or violate Outstanding Florida Water (OFW) criteria in Rule 17-4.242(2). OFW criteria require that existing ambient water quality not be lowered.

    
    

42. Evidence presented in this case indicates that there is reasonable assurance that none of the applicable DER rules will be violated by the construction of the STP and spray irrigation system as proposed by Celebrity Resorts, Inc.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue.

RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida.

DIANE K. KIESLING, 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 15th

day of July, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc.

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31).

   
   

2. Proposed findings of fact 1-3 are unnecessary.

   
   

3. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order.

Specific Rulings on Proposed Findings of Fact

Submitted by Respondent, Department of Environmental Regulation

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34).

   
   

2. Proposed findings of fact 1-3 are unnecessary.

COPIES FURNISHED:

Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113

Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113

Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113

Karen English

3680 West Highway 318

Citra, FL 32113

Marilyn Nehring

P. O. Box 481

Orange Lake, FL 32112

John Monsees

2400 NW 165 Street

Citra, FL 32113

William L. Townsend, Jr. Attorney at Law

Post Office Box 250 Palatka, FL 32178-0250

Douglas H. MacLaughlin Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Carol Browner, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002722

Orders for Case No: 91-002722