STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIE COOK MATIS, )

)

Petitioner, )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on August 24 and 25, 1993, at New Port Richey, Florida.

APPEARANCES

For Petitioner: William W. Deane, Esquire

Charles D. Hinton, Esquire Deane & Hinton, P.A.

6416 9th Street North Post Office Box 7473

St. Petersburg, Florida 33734

For Respondent, Francine M. Ffolkes, Esquire Department of Keith Hetrick, Esquire Environmental 2600 Blair Stone Road Regulation: Tallahassee, Florida 32399-2400

For Pasco County: David M. Caldevilla, Esquire

Post Office Box 2350 Tampa, Florida 33601-2350

STATEMENT OF THE ISSUES

Whether Pasco County should be granted operating permits for Embassy Hills Wastewater Treatment Plant (WWTP) (Case 92-2489); Hudson WWTP (Case 92-2489);

Hudson WWTP (Case 92-2488); and 8 Rapid Rate Infiltration Basins (RRIB) in Northwest Pasco County (Case 93-3091); whether the permit for RRIB should be granted to construct 10 RRIBs rather than 8 (Case 93-3641); whether these facilities can be operated without damage to the area potable and ground water systems; and whether the operating permit should include the provisions of a settlement agreement entered into between Matis, Pasco County and DER dated December 7, 1987. Whether the challenge to these permits was timely filed by Petitioner was resolved prior to the hearing and will not be revisited.

PRELIMINARY STATEMENT

By Notice of Intent to Issue draft permits Number DO51-203666 and DO51- 203667 the Department of Environmental Regulation (DER or Department) noticed its intent to issue permits to Pasco County to operate a 3.0 MGD AADF Type 1 Conventional Activated Sludge Wastewater Treatment Plant at Hudson, Florida, and a 3.5 MGD AADF Type 1 Conventional Activated Sludge Wastewater Treatment Plant at Embassy Hills. Petitioner requested a formal hearing to challenge the granting of these permits. By Notice of Intent to Issue draft permit No. DC51- 214670 the Department gave notice of its intent to authorize the construction of

8 RRIBs in Northwest Pasco County to serve wastewater treatment plants in Pasco County. This permit was challenged by Matis and assigned DOAH Case No. 93-3091. By Petition for Formal Administrative Hearing dated June 18, 1993, Pasco County challenged draft permit No. DC51-214670 as authorizing the construction of 8 RRIBs instead of the 10 RRIBs requested by Pasco County. This became DOAH Case No. 93-3641. The Department subsequently issued a Notice of Intent to permit 10 RRIBs under this construction permit. This mooted Case 93-3641.

These cases were consolidated for hearing. All expert witnesses submitted prefiled testimony which they adopted at the hearing and were subject to cross- examination. Petitioner called Stephen R. Boyes, accepted as an expert in hydrology, whose direct prefiled testimony is Exhibit E. The DER called Joseph Amato, P.E., who was accepted as an expert in civil, mechanical and electrical engineering, whose direct testimony is marked Exhibit C; and Judith Ann Richtar, P.G., accepted as an expert in geology and hydrology, whose prepared testimony was admitted as Exhibit D. Attached to Richtar's prefiled testimony are 4 exhibits. Department's Exhibit 1 is a Resume of Richtar; Exhibit 2 is proposed construction permit DC51-214670 for Northwest Pasco County RRIBs; Exhibit 3 is proposed operating permit DO51-20366 for the Hudson WWTP; and Exhibit 4 is the proposed operation permit for DO51-20367 for Embassy Hills WWTP.

Pasco County called Douglas Fredricks, P.E., accepted as an expert in wastewater treatment plant design, operation and civil engineering, whose prepared testimony was admitted as Exhibit A; Thomas M. O'Conner, P.E., accepted as an expert in environmental engineering and civil engineering including wastewater system design, construction and permitting, whose prepared testimony was admitted as Exhibit B; Michael Micheau, P.G., accepted as expert in geology, hydrogeology and ground water modeling, whose prepared testimony was admitted as Exhibit F; Lawrence E. Maron, P.E., accepted as an expert in civil engineering, ground water modeling and hydrology, whose prepared testimony was admitted as Exhibit G; and Paul E. Pilney, accepted as an expert in soil science, the operation of ground penetrating radar, analysis of data therefrom and sinkhole formation and identification, whose prepared testimony was admitted as Exhibit H.

Petitioner called three additional witnesses, including Matis, and two exhibits were admitted. Exhibit P1 is a settlement agreement dated December 18, 1987, and Exhibit 2 is the first draft of the settlement agreement. Pasco

County called one additional witness and its Exhibits 42, 43, 55, 56, 84, 92,

101, 107, 108, 120, 123, 130, 134, 135, 139, 150A, 150B, 151A, 151B, 153A, 153B,

156, 157, 159, 160, 162A, 162B, 185, 187A, 187B, 187C, 187D, 187E, 188, 189,

190, 192, 193, 195, 199, 201, 218, 225, 228, 229, 230, 231, 235, 236, 237, 244,

245, 246, 248A, 248B, 248C, 248D, 248F, 248G, 249, 249A, 249B, 250A, 250B, 250C,

252A, 252B, 253, and 254 were admitted into evidence.

Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the appendix attached hereto. Having fully considered all evidence presented, I submit the following.

FINDINGS OF FACT

(Findings 1-80 below are from the prehearing stipulation submitted by the parties)

1. The County is a political subdivision of the State of Florida, and owns and operates a wastewater collection, treatment, and disposal system in Pasco County, Florida.

   
   

2. The Department is a state agency created pursuant to Section 20.261, Florida Statutes, and is responsible for protecting Florida's air and water resources in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code.

   
   

3. Matis owns and resides at 11220 Denton Avenue, Hudson, Pasco County, Florida; her property is approximately 330 acres in size.

   
   

4. In 1987, Matis filed a petition for formal administrative hearing against the Department and the County, in which she challenged the Department's proposed agency action to approve the County's applications for construction permits concerning the Embassy Hills WWTP (Permit Number DC51-128933) and the Hudson WWTP (Permit Number DC51-130307). That case was subsequently assigned DOAH Case No. 87-4781.

   
   

5. Case No. 87-4781 was resolved by virtue of the 1987 Settlement Agreement.

   
   

6. Matis, the County, and the Department were each parties to the 1987 Settlement Agreement.

   
   

7. Paragraph 1(c) of the 1987 Settlement Agreement states:

   
   

   1. That the Respondent, Pasco County, will modify the permit application No. DC51-128933 as follows: . . .

      
      

      (c) The County agrees to reduce the number of ponds constructed at the Embassy disposal site located on Denton Avenue from fourteen

      (14) to nine (9) ponds by eliminating the five (5) most easterly ponds depicted on the County's construction plans; . . .

      
      

8. The County subsequently modified its application for Permit Number DC51-128933 so as to delete the five most easterly ponds referred to in paragraph 1(c) of the 1987 Settlement Agreement.

9. The Department subsequently issued Permit Numbers DC51-128933 and DC51- 130307, authorizing construction of the Embassy Hills and Hudson facilities, respectively. Permit Number DC51-128933 did not include authorization to construct the five ponds referred to in paragraph 1(c) of the 1987 Settlement Agreement.

   
   

10. The County has not violated that portion of Section 2 of the Stipulated Settlement Agreement between the County, the Department and Matis which requires the County to construct a Floridian Aquifer and shallow aquifer monitor well cluster at the Hudson WWTP site at a location acceptable to Matis.

    
    

11. The County has not violated that portion of Section 2 of the Stipulated Settlement Agreement which requires the County to monitor effluent discharged from the Hudson WWTP on a quarterly basis for the parameters specified in EPA Methods 601 and 602.

    
    

12. The County has not violated Section 10 of the Stipulated Settlement Agreement.

    
    

13. The County has not violated Section 13 of the Stipulated Settlement Agreement.

    
    

14. The County has not violated Section 14 of the Stipulated Settlement Agreement.

    
    

15. If the County and the Department comply with the 1987 Settlement Agreement, Matis will not be adversely affected by the proposed operation permits for the Embassy Hills and Hudson WWTPs (Permit Numbers DO51-203667 and DO51-203666).

    
    

16. The County applied for Permit DO51-203666 (Hudson WWTP) on appropriate Department forms.

    
    

17. The County applied for Permit DO51-203667 (Embassy Hills WWTP) on appropriate Department forms.

    
    

18. The County's application for Permit DO51-203666 (Hudson WWTP) was certified by a professional engineer registered in the State of Florida.

    
    

19. The County's application for Permit DO51-203667 (Embassy Hills WWTP) was certified by a professional engineer registered in the State of Florida.

    
    

20. The County's application for Permit DO51-203666 (Hudson WWTP) was accompanied by a written certification by the permittee on Form 17-600.910(2) that an appropriate operation and maintenance manual is available at a specified location for the Hudson WWTP and the on-site percolation pond system.

    
    

21. The County's application for Permit DO51-203667 (Embassy Hills WWTP) was accompanied by a written certification by the permittee on Form 17- 600.910(2) that an appropriate operation and maintenance manual is available at a specified location for the Embassy Hills WWTP and each associated disposal site.

    
    

22. The Hudson WWTP is a Type I facility.

    
    

23. The Embassy Hills WWTP is a Type I facility.

24. The Hudson WWTP is enclosed with a fence or otherwise designed to discourage the entry of animals and unauthorized persons.

    
    

25. The Embassy Hills WWTP is enclosed with a fence or otherwise designed to discourage the entry of animals and unauthorized persons.

    
    

26. The Hudson WWTP's on-site percolation pond system is a Type I facility.

    
    

27. The Denton Avenue Percolation Pond System is a Type I facility.

    
    

28. The proposed Northwest RRIBs project is a Type I facility.

    
    

29. The Hudson WWTP's on-site percolation pond system is a rapid rate land application system, as that term is defined in 17-610.510.

    
    

30. The Denton Avenue Percolation Pond System is a rapid rate land application system as that term is defined in Rule 17-610.510, Florida Administrative Code.

    
    

31. The Northwest RRIBs project is a rapid rate land application system, as that term is defined in Rule 17-610.510, Florida Administrative Code.

    
    

32. There are no storage or holding ponds incorporated in the Hudson WWTP's on-site percolation pond system.

    
    

33. There are no storage or holding ponds incorporation in the Denton Avenue Percolation Pond System.

    
    

34. There are no storage or holding ponds proposed for the Northwest RRIBs project.

    
    

35. The Hudson WWTP's on-site percolation ponds are designed to provide at least three feet of freeboard.

    
    

36. The Denton Avenue Percolation Ponds are designed to provide at least three feet of freeboard.

    
    

37. The Northwest RRIBs are designed to provide at least three feet of freeboard.

    
    

38. Signs or other type of notice are posted around the Hudson WWTP's on- site percolation pond system, which designate the nature of the project area.

    
    

39. Signs or other type of notice are posted around the Denton Avenue Percolation Pond site, which designate the nature of the project area.

    
    

40. Signs or other type of notice will be posted around the Northwest RRIBs site, which designate the nature of the project area.

    
    

41. There is fencing around the Hudson WWTP's percolation ponds on-site.

    
    

42. There is fencing around the percolation ponds at the Denton Avenue Percolation Ponds site.

43. There will be fencing around the percolation ponds at the Northwest RRIBs site.

    
    

44. There is a set back distance of at least 500 feet from the edge of the percolation ponds at the Denton Avenue Percolation Pond site to any potable water supply well.

    
    

45. There will be a set back distance of at least 500 feet from the edge of the percolation ponds at the Northwest RRIBs site to any potable water supply well.

    
    

46. There is a set back distance of at lest 500 feet from the edge of the Hudson WWTP's percolation ponds on-site to any Class I Water.

    
    

47. There is a set back distance of at least 500 feet from the edge of the percolation ponds at the Denton Avenue Percolation Pond site to any Class I Water.

    
    

48. There will be a set back distance of at least 500 feet from the edge of the percolation ponds at the Northwest RRIBs site to any Class I Water.

    
    

49. There is a set back distance of at least 500 feet from the edge of the Hudson WWTP's percolation ponds on-site to any Class II Water.

    
    

50. There is a set back distance of at least 500 feet from the edge of the percolation ponds at the Denton Avenue Percolation Pond site to any Class II Water.

    
    

51. There is a set back distance of at least 500 feet form the edge of the percolation ponds at the Northwest RRIBs site to any Class II Water.

    
    

52. There is a set back distance of at least 100 feet from any Hudson WWTP wastewater transmission facility to any public water supply well.

    
    

53. There is a set back distance of at least 100 feet from the Denton Avenue Percolation Pond site to any public water supply well.

    
    

54. There is a set back distance of at least 100 feet from the Northwest RRIBs site to any public water supply well.

    
    

55. Matis does not object to or challenge that portion of proposed Permit Number DO51-203667 (Embassy Hills WWTP) which relates to the Fox Hollow Percolation Pond System.

    
    

56. Matis does not object to or challenge that portion of proposed Permit Number DO51-203667 (Embassy Hills WWTP) which relates to the Beacon Woods Golf Course Reuse System.

    
    

57. Matis does not object to or challenge that portion of proposed Permit Number DO51-203667 (Embassy Hills WWTP) which relates to the Beacon Woods East Golf Course Reuse System.

    
    

58. Matis does not object to or challenge that portion of proposed Permit Number DO51-203667 (Embassy Hills WWTP) which relates to the Timber Oaks Golf Course Reuse System.

59. On December 23, 1992, the Department's Intent to Issue Permit Number DC51-214670 was published in the Pasco Times.

    
    

60. On December 23, 1992, Matis saw and read an Intent to Issue Permit Number DC51-214670 published in the Pasco Times.

    
    

61. Matis' property receives wastewater service from a septic tank located on the east side of her house.

    
    

62. Matis' septic tank was installed in 1965, and it has not been replaced or serviced since that time.

    
    

63. Since Matis' septic tank was installed in 1965, she has never had any wastewater removed from it.

    
    

64. Matis is not aware of any water quality or contamination problems on her property.

    
    

65. All water quality analyses which Matis has performed on her well water has revealed no contamination.

    
    

66. Matis has never experienced an inability to pump water from her wells.

    
    

67. Matis is not aware of any land collapse or sinkhole problems on her property.

    
    

68. Matis' property includes approximately 240 to 250 acres of planted pine trees.

    
    

69. Matis has had cattle operations on her property since around 1967.

    
    

70. Presently, Matis has approximately 30 head of cattle on her property.

    
    

71. Matis is not aware of any adverse affects to her agricultural operations caused by the historical operations of the County's wastewater facilities.

    
    

72. Matis is not aware of any adverse affects to her property caused by the historical operations of the County's existing wastewater facilities.

    
    

73. Matis is not an expert in the field of engineering, geology, hydrology, hydrogeology, wastewater system design, wastewater system operation, wastewater treatment methods, wastewater disinfection, sinkhole formation, biology, botany, ecology, groundwater modeling, water quality analysis, or air quality analysis.

    
    

74. By letter dated November 17, 1992, Attorney William Deane requested the Department to provide his client (Respondent Marie Cook Matis), through his office, actual notice of the proposed agency action regarding the Northwest RRIBs construction permit application.

    
    

75. On December 22, 1992, the Department furnished Matis (via her attorney, Mr. Deane) a telephonic facsimile copy of an Intent to Issue Permit Number DC51-214670 for the Northwest RRIBs.

    
    

76. On December 23, 1992, the County (as permit applicant) had an Intent to Issue Permit Number DC51-214670 published in the Pasco Times.

77. On December 23, 1992, the Pasco Times was a newspaper of general circulation in the area affected by the Northwest RRIBs project.

    
    

78. On December 29, 1992, the Department's Southwest District Office hand delivered a copy of the Intent to Issue Permit Number DC51-214670 to Matis.

    
    

79. On or about January 5, 1993, Mr. Deane's associate (i.e., Attorney Charles Hinton) sent the Department's attorney, Francine Ffolkes, a letter which stated:

    
    

    RE: Construction Permit Number DC51-214670 Northwest Pasco Rapid Infiltration Basins Notice of Intent

    
    

    Dear Ms. Ffolkes:

    
    

    This is to confirm our conversation this morning regarding the above referenced permit. Pursuant to that conversation, it is our understanding that Ms. Matis received actual notice of the above-referenced Notice of Intent on December 29, 1992. Accordingly, Ms. Matis has until January 12, 1993 to file a motion or objection to this permit. If this is in anyway incorrect, please contact my office immediately.

    
    

    Sincerely,

    
    

    /s/ Charles D. Hinton Charles D. Hinton

    
    

    Sent by facsimile this 5 day of January, 1993.

    
    

    Mr. Hinton did not send a copy of the foregoing letter to the County or otherwise advise the County regarding his conversation with Ms. Ffolkes.

    
    

80. On January 12, 1993, Matis' Petition for Formal Administrative Hearing concerning the Northwest RRIBs construction permit (Permit Number DC51-214670) was received by the Department's Office of General Counsel.

    
    

81. Matis' sole objection to the proposed operating permits for Embassy Hills WWTP and Hudson WWTP is that they do not incorporate the terms of the 1987 Settlement Agreement. No evidence was submitted that Pasco County is not complying with the terms of this settlement agreement or that the operation of these plants will in any wise affect Matis' property.

    
    

82. The evidence is unrebutted that these plants have been operating for over two years without violations and that the effluent from these plants meets all statutory and regulatory requirements. So far as practicable the treated wastewater from these plants (and other WWTPs operated by Pasco County) is reused for irrigating golf courses, orange groves, and for residential irrigation. It is only during rainy periods when irrigation is not called for that this effluent is discharged through the infiltration basins. Both of these plants are Type I conventional activated sludge with anoxic denitrification wastewater treatment plants and meet the limitations for ph, BOD, nitrates,

    chlorine, sodium and dissolved solids contained in the proposed operating permit conditions. Although these operating limits for BOD, TSS and nitrates in the proposed operating permit exceed those in the construction permit and the Settlement Agreement, the proposed permit meets all statutory and regulatory requirements which the Department is called upon to enforce. The actual operation of these WWTPs meet the elevated standards of 15BOD, 5TSS, and 10 nitrates contained in the construction permit and Settlement Agreement.

    Accordingly, Pasco County is in compliance with the Settlement Agreement.

    
    

83. Pasco County, like much of central Florida, is a Karst area subject to sinkholes. To insure the proposed rapid rate infiltration basins will not constitute a threat to the aquifer below the sites selected for these RRIBs, transects were taken, and the U.S. Department of Agriculture, Soil Conservation Service was engaged to conduct ground penetrating radar (GPR) studies of these areas. For any of those areas showing a possibility of below ground caverns or other evidence of potential sinkhole, borings were taken to determine the conditions below the surface of the ground. The GPR survey coupled with these "truth" borings revealed that the sites selected for these RRIBs are safe and appropriate for use as infiltration basins to receive the treated effluent from these plants.

    
    

84. Five of the proposed RRIBs located closest to Matis' property were removed from the 1987 Pasco County construction permit application as a result of the Settlement Agreement. That Agreement did not preclude Pasco County from later seeking authorization to construct these RRIBs. It is the construction of these five RRIBs that Matis here protests.

    
    

85. Matis' property is upgrade from these RRIBs and from the WWTPs here involved. Accordingly, it is virtually impossible for effluent from these RRIBs to reach Matis' property or her potable water well. In fact, the most likely source of contamination of Matis' potable water well is Matis' septic tank which is located upgrade from her potable water well.

    
    

86. Pasco County currently reaches about 80 percent utilization of the effluent from its WWTPs as reused water for irrigation of golf courses, orange groves, residences, etc. It is seeking 100 percent utilization of its treated effluent for reuse. This will conserve potable water from the aquifers and better enable Pasco County to supply adequate potable water to its increasing population.

    
    

87. To accomplish better reuse of treated effluent from its WWTPs Pasco County intends to install a master reuse plan wherein wastewater effluent from all the WWTPs in the county would feed into a single looped system. This system would intermingle all of the wastewater and then dispose of this wastewater at all of the county's reuse points. When the reuse points cannot absorb the wastewater due to rain or high water conditions, the wastewater would be discharged into the RRIBs. Although the construction of the additional five RRIBs to which Matis objects exceed the minimal disposal capacity required by the Department, having this excess disposal capacity reduces the possibility of contamination of surface waters from the treated wastewater from these WWTPs.

    
    

    CONCLUSIONS OF LAW

    
    

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

89. Pasco County's motion to dismiss the petition of Matis as not timely filed was earlier denied and will not be here revisited. While Matis relies on the assertion by counsel for the Department that the date on which the 14 day period to challenge the Notice of Intent was December 29, 1992, may not have been wise, the fact remains that Matis relied on this representation and this brought into play the doctrine of equitable estoppel and equitable tolling.

    
    

90. Section 403.088, Florida Statutes, which establishes the statutory requirements for a permit to discharge waste into the waters of the state provides:

    
    

    (1) No person, without written authorization of the department, shall discharge into the waters of the state any waste which, by itself or in combination with wastes of other sources, reduces the quality of the receiving waters below the classification established for them. . . .

    (2)(a) Any person intending to discharge waste into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires.

    1. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the

       classification established for them, it shall deny the application and refuse to issue the permit. If the department finds the proposed discharge will not reduce the quality of the receiving waters below the classification established for them, it may issue an operation permit if it finds such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest.

    2. A permit shall:

    1. Specify the manner, nature, volume, and frequency of the discharge permitted;

    2. Require proper operation and maintenance of any pollution abatement

       facility by qualified personnel in accordance with standards established by the department;

    3. Contain such additional conditions, requirements, and restrictions as the department deems necessary to preserve and protect the quality of the receiving waters; and

    4. Be valid for the period of time specified therein.

    
    

    The draft permit satisfies these requirements.

    
    

91. Rules establishing procedures for the issuance of such permits are contained in Chapter 17-4, Florida Administrative Code. Rule 17-4.070 provides:

    (1) A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurances based on plans, test results, installation of pollution control equipment or other information that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules.

    * * *

    (3) The Department may issue any permit with specific conditions necessary to provide reasonable assurance that Department rules can be met.

    
    

92. Rule 17-4.240, Florida Administrative Code, provides applications for a permit to discharge waste into the waters of the state shall include:

    
    

    1. The total daily flow and the average daily concentration and weight of each appropriate pollution parameter contained in the discharge

    2. The temperature of the discharge

    3. Any additional information reasonably necessary to evaluate treatment efficiency and the effect of such discharge upon the receiving waters

    (2) An operation permit shall be issued only if all Department requirements are met, including the provisions of Rules 17-302.300, 17-302.700 and Rule 17-242, F.A.C.

    
    

93. The evidence presented establishes that Pasco County met all of the statutory and rule requirements for the issuance of these permits.

    
    

94. Matis' contention that the operation permit should contain all of the provisions included in the Settlement Agreement is without merit. This Settlement Agreement is in the nature of a contract and the law is well established that state agencies do not have authority to adjudicate contract rights as that is solely a judicial function. Peck Plaza Condominium v. Division of Land Sales, 371 So.2d 152 (Fla. 1st DCA 1979); Fleishman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3rd DCA 1983) rev. den., 457 So.2d 847 (Fla. 1980).

    
    

95. Further, in issuing a permit the Department must follow the requirements contained in its own rules and may not deviate therefrom. Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). Once an applicant has demonstrated that it meets all of the requirements for the applied for permit, the agency is without authority to add requirements exceeding those specified in the appropriate statutes and rules. Accordingly, the operation permit should not contain those provisions of the Settlement Agreement which exceed legal requirements the applicant must satisfy in order to be issued a permit. If Pasco County violates provisions of the Settlement Agreement which are not

    included in the operation permit issued, Matis' recourse is the judicial system for breach of contract.

    
    

96. From the foregoing it is concluded that Pasco County has provided reasonable assurances that the operation of the Embassy Hills and Hudson WWTPs will not cause pollution in contravention of Department standards or rules. It is further concluded that the construction of the Northwest Pasco County RRIBs will not cause pollution in contravention of the Department's standards or rules.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Permit Number DO51-203666 be issued for the operation of Hudson WWTP; that Permit Number DO51-203667 be issued for the operation of Embassy Hills WWTP; and that Permit Number DC51-214670 be issued for construction of the ten Northwest Pasco County RRIBs.

DONE AND ENTERED this 22nd day of October, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 22nd day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2488

Proposed findings submitted by Petitioner are accepted except as noted below. Those neither accepted nor noted below were deemed unnecessary to the conclusions reached.

16. Rejected in part. Matis saw the Notice of Intent to issue the permits here at issue published in the Pasco Times on December 23, 1992, and on December 22, 1992, Matis' attorney was furnished a facsimile copy of this notice. A copy was personally delivered to Matis by a DER representative on December 29, 1992.

24. Rejected.

30-32. Rejected as irrelevant.

1. Rejected.

   DER adopted the proposed findings submitted by Pasco County. Those findings are accepted. Proposed findings submitted by Pasco County and not included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached largely because Petitioner Matis challenged only the refusal of DER to include the provisions of the Settlement Agreement in the operation permit for the WWTPs and to grant construction permits for the five RRIBs withdrawn from the petition in 1987 as a result of the Settlement Agreement.

   
   

   COPIES FURNISHED:

   
   

   William W. Deane, Esquire Charles D. Hinton, Esquire Deane & Hinton, P.A.

   Post Office Box 7473

   St. Petersburg, Florida 33734

   
   

   David M. Caldevilla, Esquire Post Office Box 172537 Tampa, Florida 33672

   
   

   Francine M. Ffolkes, Esquire Keith Hetrick, Esquire

   Department of Environmental Protection 2600 Blair Stone Road

   Tallahassee, Florida 32399-2400

   
   

   Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road

   Tallahassee, Florida 32399-2400

   
   

   Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road

   Tallahassee, Florida 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 ten 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.

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF ENVIRONMENTAL PROTECTION

   
   

   MARIE COOK MATIS, )

   )

   Petitioner, )

   )

   vs. ) OGC Case No. 93-0092

   ) DOAH Case Nos. 92-2488

   PASCO COUNTY and DEPARTMENT OF ) 92-2489

   ENVIRONMENTAL PROTECTION, ) 93-3091

   )

   Respondents. )

   )

   
   

   FINAL ORDER

   
   

   On October 22, 1993, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Petitioner, Marie Cook Matis (hereafter "Matis"), and to the Respondents, State of Florida Department of Environmental Protection, formerly known as the Department of Environmental Regulation (hereafter "Department"), and Pasco County, Florida (hereafter "County"). A copy of the Recommended Order is attached hereto as Exhibit A.

   
   

   Matis timely filed her Exceptions to the Recommended Order and Request for Oral Argument on November 5, 1993. On November 15, 1993, the County timely served its Response to Petitioner's Exceptions to Recommended Order and Request for Oral Argument. The County also simultaneously served a separate Motion for Attorney Fees and Costs. The matter is now before me as Secretary of the Department for final agency action.

   
   

   BACKGROUND

   
   

   In 1987, Matis filed a petition for a formal administrative hearing challenging the Department's notices of intent to issue permits to the County pertaining to the proposed construction of two wastewater treatment plants and disposal facilities in Pasco County, Florida. (Recommended Order, paragraph 4) The first requested permit (DC51-128933) was to construct a wastewater treatment plant at Embassy Hills (hereafter "Embassy Hills WWTP"). The second permit (DC51-130307) was to construct a wastewater treatment plant at Hudson (hereafter "Hudson WWTP").

   
   

   Matis' 1987 petition challenging these two construction permits requested by the County was forwarded to DOAH and assigned DOAH Case No. 87-4781. 1/ DOAH Case No. 87-4781 was subsequently resolved pursuant to a Stipulated Settlement Agreement and Request for Remand executed by Matis, the County and the Department on December 18, 1987 (hereafter "Settlement Agreement"). 2/ This 1987 Settlement Agreement was incorporated into a Final Order entered by the Department on January 21, 1988, in the case of Matis v. Pasco County, et. al., DOAH Case No. 87-4781 (OGC Case No. 87-0386). A copy of the 1988 Final Order in the Matis case is attached hereto as Exhibit B.

   
   

   The 1987 Settlement Agreement included certain conditions agreed to by the County with respect to the construction and operation of the Embassy Hills and Hudson WWTPs. One of the key provisions of the Settlement Agreement, paragraph 1(c), pertained to the Embassy Hills WWTP and reads in pertinent part as follows:

   
   

   (c) The County agrees to reduce the number of ponds constructed at the Embassy disposal site located on Denton Avenue from fourteen

   (14) to nine (9) ponds by eliminating the five

   (5) most easterly ponds depicted on the County's plans . . . .

   
   

   (Petitioner's Exhibit No. 1, pages 1-2)

   
   

   The Recommended Order of the Hearing Officer now before me for review contains, inter alia, the following stipulated factual findings relating to the 1987 Settlement Agreement:

   
   

   1. The County subsequently modified its application for Permit Number DC51-128933 so as to delete the five most easterly ponds referred to in paragraph 1(c) of the 1987 Settlement Agreement.

   2. The Department subsequently issued Permit Numbers DC51-128933 and DC51-130307, authorizing construction of the Embassy Hills and Hudson facilities, respectively. Permit Number DC51-128933 did not include authorization to construct the five ponds referred to in Paragraph 1(c) of the 1987 Settlement Agreement.

In May of 1991, the County executed certificates of completion of construction of the Embassy Hills WWTP, the Hudson WWTP and the related disposal facilities. (County's Exhibits 130, 135) The County subsequently applied for operation permits for the Embassy Hills and Hudson WWTPs and related disposal facilities in October of 1991. (County's Exhibits 150A and 151A)

In February of 1992, the Department executed notices of intent to issue operating permits for the Hudson WWTP (DO51-203666) and the Embassy Hills WWTP (DO51-203667). (Dept. Exhibits 3 and 4) Matis then filed petitions challenging the Department's notices of intent to issue the Hudson WWTP and the Embassy Hills 3/ WWTP operating permits. The Department forwarded Matis' petitions to DOAH for the purpose of assignment of a Hearing Officer to hold a formal hearing under s. 120.57(1), Florida Statutes. Matis' petitions were assigned DOAH case Nos. 92-2488 and 92-2489, respectively.

In December of 1992, the Department issued a notice of its intent to grant a permit (DC51-214670) to the County to construct eight (8) Rapid Rate Infiltration Basins in Northwest Pasco County (hereafter "Northwest RRIBs"). (Dept. Exhibit 2) Matis' challenge to the issuance of this construction permit was forwarded to DOAH and was assigned DOAH Case No. 93-3091. 4/

DOAH case Nos. 92-2488, 92-2489 and 93-3091 were subsequently consolidated for hearing. A formal administrative hearing was held in New Port Richey, Florida, on August 24-25, 1993, before DOAH Hearing Officer K. N. Ayers. The prefiled and live testimony of expert witnesses and documentary evidence were introduced into evidence at the hearing on behalf of Matis, the County, and the Department. Matis also presented the testimony of factual witnesses, including herself.

The key issues before the Hearing Officer were:

1. Whether the conditions set forth in the 1987 Settlement Agreement entered into by Matis, the County and the Department in DOAH Case No. 87-4781

   were applicable to the subject permits now requested by the County in these consolidated cases.

   
   

2. Whether the County had provided "reasonable assurances" that the operation of the Hudson and Embassy Hills WWTPs and the construction of the Northwest RRIBs would comply with the applicable water quality standards set forth in the governing statutes and rules.

The Hearing Officer ruled in "Finding of Fact" No. 84 of the Recommended Order that the 1987 Settlement Agreement did not preclude the County from later seeking authorization to construct the 5 RRIBs at the Northwest Pasco County site, which had been deleted pursuant to the 1987 Settlement Agreement. The Hearing Officer also ruled in paragraph 94 of the Recommended Order that Matis' contention that the operation permits for the Hudson and Embassy Hills WWTPs should include the provisions of the 1987 Settlement Agreement was "without merit."

In paragraph 96 of the Recommended Order, the Hearing Officer concluded that the County had provided reasonable assurances that the Hudson WWTP, Embassy Hills WWTP and the Northwest RRIBs would not cause pollution in contravention to the Department's standards or rules. The Hearing Officer ultimately recommended that the Department enter a Final Order issuing the permits to the County to operate the Hudson WWTP and the Embassy Hills WWTP and to construct the ten (10) Northwest RRIBs. (Recommended Order, p. 20)

STANDARD OF REVIEW

Matis filed various exceptions to the Recommended Order disputing portions of the Findings of Fact and Conclusions of Law. The County filed its responses in opposition to each of Matis' exceptions. As a preface to my rulings on the various exceptions, it is appropriate that I comment on the standard of review imposed by law on me in reviewing recommended orders submitted by DOAH hearing officers.

Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987).

Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.

Sheffield, 95 So.2d 912, 916 (Fla. 1957).

The agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the hearing officer, I am bound by such finding. Florida Department of Business Regulation v. Bradley, supra, at page 1123. However, I am free to

exercise my judgment and reject the Hearing Officer's conclusions of law. See Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); and Alles v. Dept. of Professional Services, 423 So.2d 624 (Fla. 5th DCA 1982).

RULING ON REQUEST FOR ORAL ARGUMENT ON MATIS' EXCEPTIONS

Matis has requested oral argument before the Secretary of the Department on her Exceptions to the Recommended Order. Rule 17-103.200(3), F.A.C., provides that the Secretary, in her discretion, may grant oral argument. However, I decline to exercise such discretion. All parties to this proceeding have had an opportunity to file written exceptions and responses to exceptions in this matter. Based on my review of this case, I conclude that oral argument is not necessary to clarify the issues. Accordingly, the request for oral argument is hereby denied.

RULINGS ON MATIS' EXCEPTIONS

Exception No. 1

This exception pertains to that portion of the Hearing Officer's findings of fact set forth in paragraph 81 that "[no] evidence was submitted that Pasco County is not complying with the terms of this settlement agreement "

Matis cites the hearing testimony of the County's Assistant Administrator for Utility Services, Douglas Bramlett, as record evidence of noncompliance with the 1987 Settlement Agreement.

In Paragraph 1(b) of the 1987 Settlement Agreement, the County agreed to modify the Embassy Hills construction permit application to install a single mediation filtration device at the Embassy percolation ponds on Denton Avenue. (Petitioner's Exhibit 1, p. 1) However, on page 216 of the transcript of the hearing on August 25, 1993, Mr. Bramlett testified in part as follows in response to questions by Matis' attorney:

Q. Okay. Has a single-media filter been installed at the Denton Avenue disposal site?

MR. CALDEVILLA: I object. He's getting into whether we've breached that contract or not.

HEARING OFFICER: He can ask the question.

Q. (By Mr. Hinton) I'm asking a question re- garding has a single-media filter been in- stalled in the Denton Avenue disposal site?

A. For the Hudson facility?

Q. For the Embassy Hills.

A. No, sir.

In its response to this exception by Matis, the County failed to directly address the above quoted testimony of Mr. Bramlett seemingly admitting that the County had failed to comply with paragraph 1(b) of the 1987 Settlement Agreement. My own review of the record failed to locate any competent,

substantial evidence directly rebutting this testimony of the County's own Assistant Director of Utility Services.

The County's response goes into the alleged lack of standing of Matis to challenge the projects and the alleged inadmissibility of Mr. Bramlett's testimony in question. I conclude that the County's lack of standing argument is without merit. The Recommended Order does not contain any findings or conclusions of the Hearing Officer directly addressing the issue of standing. Furthermore, the County failed to file any exceptions with me suggesting improprieties in the Recommended Order with respect to Matis' standing to challenge the subject projects.

In addition, I view the County's reliance on the case of Agrico Chemical Co. v. Dept. of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), to be misplaced. The Agrico Chemical case held that a competitor who challenged a permit asserting only economic, rather than environmental, injury did not have standing. It is undisputed here that Matis has alleged potential environmental injury to her nearby residential property 5/ if the subject permits are issued in these consolidated proceedings. Cf. Palm Beach v. Dept. of Natural Resources, 577 So.2d 1383 (Fla. 4th DCA 1991), holding that allegations of adverse environmental impact on nearby properties is sufficient to confer standing on the owners.

I also disagree with the County's contention that all the evidence submitted by Matis as to the County's alleged breach of the 1987 Settlement Agreement was "totally irrelevant" and, therefore, inadmissible at the hearing. The Hearing Officer ruled at the hearing that the 1987 Settlement Agreement was admissible into evidence. (Tr. Vol. 2, p. 40) The Hearing Officer also allowed Matis to present testimony of witnesses relating to the Agreement, despite the County's continuing objection to such evidence. (Tr. Vol. 1, p. 15; Tr. Vol. 2, pp. 13-14) I concur with these rulings of the Hearing Officer admitting the 1987 Settlement Agreement into evidence and allowing testimony concerning the Settlement Agreement for the reasons set forth in my rulings on Matis' Exceptions 3, 4 and 5.

I do observe here that the Prehearing Stipulation agreed to by all the parties to these proceedings contained twelve (12) paragraphs (D. 4-15) setting forth stipulated findings of fact dealing with DOAH Case No. 87-4781 and the resulting Settlement Agreement. I would also note that these stipulated factual findings pertaining to DOAH Case No. 87-4781 and the resulting Settlement Agreement were incorporated into the subject Recommended Order (without objection of the County or the Department) as Findings of Fact Numbers 4-15. I view the County's action of stipulating to these various factual findings related to the 1987 Settlement Agreement to be inconsistent with its contention presented on agency review that the Settlement Agreement is "totally irrelevant."

For the above reasons, as well as the reasons set forth in my rulings on Matis' Exceptions 3, 4 and 5 below, Matis' Exception 1 disputing the quoted portion of the Hearing Officer's findings of fact in paragraph 81 of the Recommended Order is granted.

Exception No. 2

In Exception 2 Matis disputes the Hearing Officer's factual finding in paragraph 82 "that these plants [Embassy Hills and Hudson] have been operating for over two years without violations . . . ." I do conclude that there is

competent, substantial evidence of record to support a factual finding that alternative methods were implemented for sampling 601 and 602 contaminants at the Embassy Hills and Hudson WWTPs. (Tr. Vol. 1, pp. 148-152.)

However, in view of my above ruling on Matis' Exception No. 1, I reject the Hearing Officer's unconditional factual finding in paragraph 82 that the Embassy Hills and Hudson WWTPs have been operating for over two years without [any] violations. Consequently, Matis' Exception No. 2 is also granted.

Exceptions 3, 4 and 5

In Exceptions 3, 4 and 5, Matis disputes the Hearing Officer's findings and rulings in paragraphs 84, 94 and 95 of the Recommended Order relating to the 1987 Settlement Agreement incorporated in the Department's Final Order in DOAH Case No. 87-4781 (Exhibit B). I have consolidated my rulings on these three exceptions due to their primary focus on the issue of the effect of the 1987 Settlement Agreement.

In Paragraph 84, the Hearing Officer found that five of the proposed RRIBs located closest to Matis' property were removed from the 1987 Pasco County [Embassy Hills] construction permit application as a result of the Settlement Agreement. This stipulated fact was the primary basis of Matis' current challenge to the Department's notice of intent to issue a construction permit for the Northwest RRIB (DC51-214670).

The Hearing Officer concludes in paragraph 84 that the "Agreement did not preclude Pasco County from later seeking authorization to construct these [five] RRIBs". I view this critical determination of the Hearing Officer to constitute a conclusion of law, even though it is located in the portion of the Recommended Order designated by the Hearing Officer as "Findings of Fact."

I am not free to reject the Hearing Officer's findings of fact relating to the 1987 Settlement Agreement. However, I am free to substitute my judgment concerning the legal conclusion of whether the terms of the Settlement Agreement establish res judicata and/or collateral estoppel under Florida law. See, Harloff v. City of Sarasota, 575 So.2d 1324, 1326 (Fla. 2d DCA 1991)

As discussed above, the 1987 Settlement Agreement signed by the same parties to these consolidated proceedings was actually incorporated into a Final Order entered by the Department on January 21, 1988, in Matis v. Pasco County, et. al., DOAH Case No. 87-4781 (OGC Case No. 87-0386). (Exhibit B) Under the doctrine of res judicata, also called claim preclusion, a final judgment on the merits is conclusive as to matters which were or could have been determined in the prior proceedings and will bar a subsequent action between the same parties on the same cause of action. Albrecht v. State, 444 So.2d 8 (Fla. 1984).

The doctrine of collateral estoppel, also called issue preclusion and estoppel by judgment, precludes a party from asserting in one proceeding a position that is inconsistent with that party's position in a prior proceeding. See, e.g., Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla. 1984); and Brown v. Dept. of Professional Regulation, 602 So.2d 1337 (Fla. 1st DCA 1992). Collateral estoppel differs from res judicata in that there is no requirement of identity of the cause of action. Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316, 1322 (Fla. 3d DCA 1979).

It is the well-settled law of this state that res judicata and collateral estoppel are applicable to administrative proceedings. See, e.g., Thomson v.

Dept. of Environmental Regulation, 511 So.2d 989, 991 (Fla. 1987); and Brown v. Dept. of Professional Regulation, supra, at page 1341. Furthermore, the Florida Supreme Court has held that res judicata is applicable to a consent judgment, even though a consent judgment is a judicially approved contract and not a judgment entered after litigation. Arrieta-Giminez v. Arrieta-Negron, 551 So.2d 1184, 1186 (Fla. 1989).

The following facts were either stipulated to or were uncontroverted in the consolidated proceeding now on review:

1. Matis, the County and the Department entered into the 1987 Settlement Agreement in DOAH Case No. 87-4781. This Settlement Agreement was incorporated into a Final Order entered by the Department in January of 1988 in the case, thereby resolving Matis' challenges to the Department's issuance of the Embassy Hills and Hudson WWTPs construction permits to the County. (Exhibit B)

2. The 1987 Settlement Agreement contained various conditions agreed to by the County applicable to both the Embassy Hills and Hudson WWTPs. Among these conditions, was an agreement by the County in Paragraph 1(c) of the Settlement Agreement to eliminate the five (5) most easterly percolation ponds depicted on the Embassy Hills project construction plans.

3. The Department subsequently issued the Embassy Hills and Hudson WWTPs construction permits in accordance with the terms of the 1987 Settlement Agreement. (Exhibit B, p. 1) The Embassy Hills construction permit (DC51-128933) excluded the five most easterly ponds referred to in paragraph 1(c) of the 1987 Settlement Agreement.

4. The 1987 Settlement Agreement entered in DOAH Case No. 87-4781 was not expressly limited to the construction phase of the Hudson WWTP and the Embassy Hills WWTP. In fact, the conditions set forth in paragraphs 1(a), 2(b), 3, 4, 5, 6, 9, 11 and 15 of the Settlement Agreement clearly contemplate matters that would or might occur upon completion of construction of the Hudson and Embassy Hills WWTPs. (Petitioner's Exhibit No. 1, pp. 1-5)

5. The Embassy Hills WWTP and the Hudson WWTP facilities involved in DOAH Case No. 87-4781 are the same facilities for which the County now seeks operating permits from the Department in these proceedings.

6. A 1992 report on the proposed Northwest RRIB construction project sought to be permitted here was prepared by the County's consultant, Atlanta Testing and Engineering. (County's Exhibit 185) This 1992 report by the County's consultant refers to the 1986 report on the Embassy Hills project and candidly asserts that "[t]he County now desires to construct the remaining five (5) RRIB's in order to permit the site for the disposal of the originally planned 2.2 mgd of reclaimed water." (County's Exhibit 185, p. 12)

7. These five (5) RRIB referred to by the County's consultant in its 1992 report on the proposed Northwest RRIB project are the same five percolation ponds on the Department's Notice of Intent to Issue construction permit No. DC51-214670 identified as percolation ponds numbers "1,

8, 9, 10 and 11". These five proposed Northwest RRIBs are proposed to be located on a 40-acre site adjoining Matis' residential property. (Dept.'s Exhibit 1, p. 1; and Tr.

Vol. 1, pp. 54-56, 63, 69)

The County does not dispute the fact that the five percolation ponds eliminated from the Embassy Hills construction permit pursuant to the 1987 Settlement Agreement and subsequent Department Final Order in DOAH Case No. 87- 4781 are now a part of the Northwest RRIB project sought to be permitted for construction in these proceedings. Instead, the County relies on a line of cases purportedly holding that the Department has no authority to adjudicate contract rights arising out of the 1987 Settlement Agreement. See, e.g., Fleischman v. Dept. of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983), rev. den., 451 So.2d 847 (Fla. 1984); and Peck Plaza Condominium v. Fla. Division of Land Sales, 371 So.2d 152 (Fla. 1st DCA 1979).

I conclude, however, that the line of cases typified by Fleischman v. Dept. of Professional Regulation, supra, does not control the disposition of these proceedings. I agree with Matis' contention that the Fleischman line of cases is inapplicable in that those cases involve contracts between a party to an administrative proceeding and a third party not before DOAH or the state agency in question. Furthermore, in none of these cases relied upon by the County were the agreements executed in the course of a pending administrative case and ultimately incorporated into an agency Final Order.

I would also note here that the court's holding in the Peck Plaza Condominium, case, supra, was based largely on a finding that the condominium contract in question was admittedly ambiguous. In the instant proceedings, however, the County's attorney represented to the Hearing Officer in opening argument that the provisions of the 1987 Settlement Agreement were "plain and unambiguous." (Tr. Vol. 1, p. 15)

The Hearing Officer also concluded in paragraph 95 that the provisions of the 1987 Settlement are not controlling in these proceedings, citing a line of cases holding that a state agency may not deviate from its rules in issuing a permit. See, e.g., Taylor v. Cedar Key Special Water & Sewer District, 590 So.2d 481 (Fla. 1st DCA 1991). However, I conclude that the line of cases exemplified by Taylor is not applicable here. None of the Taylor line of cases holds that the provisions of a Settlement Agreement incorporated into an agency Final Order in an administrative proceeding are not enforceable merely because the provisions may be stricter than the standard permitting requirements set forth in the applicable statutes and rules.

In view of the above, I conclude that the doctrines of res judicata and collateral estoppel preclude the County and Department from disclaiming that the conditions set forth in the 1987 Settlement Agreement incorporated into the Department's Final Order in DOAH Case No. 87-4781 are not applicable to the issuance of the permits requested in these proceedings. Consequently, Matis' exceptions 3, 4 and 5 pertaining to the Hearing Officer's "Finding of Fact No.

84" and Conclusions of Law Nos. 94 and 95 are granted.

RULING ON THE COUNTY'S MOTION FOR ATTORNEY'S FEES AND COSTS

The County served a separate Motion For Attorney's Fees And Costs contemporaneously with its Response to Matis' Exceptions to the Recommended Order. However, I find the County's motion to be without merit.

The provisions of section 120.59(6)(a), Florida Statutes, authorize the award of attorney's fees to the "prevailing party" in a formal administrative proceeding, provided the prevailing party is not an "agency." Even if the County were deemed not to be an "agency" for the purpose of this subsection, I do not view the County to be a "prevailing party" in these proceedings based on the rulings of law in this Final Order.

In addition, subsection 120.59(6)(b), Florida Statutes, limits the award of attorney's fees to a prevailing party in a formal administrative proceeding "only where the nonprevailing adverse party has been determined by the hearing officer to have participated in the proceeding for an improper purpose." (Emphasis supplied) The related provisions of subsection 120.59(6)(d), Florida Statutes, require that in such instance, the hearing officer's recommended order shall designate that a party participated in the proceeding for an improper purpose and shall recommend the award of costs and attorney fees.

The Recommended Order in this case does not contain any determination by the Hearing Officer that any party participated in these proceedings for an improper purpose. Also, the Recommended Order fails to recommend the award of costs and attorney's fees as mandated by section 120.59(6)(d), Florida Statutes. Consequently, the County's Motion for Attorney's Fees and Costs is denied.

CONCLUSION

I agree with the conclusion of the Hearing Officer in paragraph 96 that the County has provided reasonable assurances that the operation of the Embassy Hills and Hudson WWTPs and the construction of the Northwest RRIBs will not cause pollution or contravene Department standards or rules. Such agreement would likely result in the entry of a Final Order adopting the Hearing Officer's recommendations concerning issuance of the three requested permits to the County, if the 1987 Settlement Agreement between the parties were not an issue here.

However, it is the settled law of this state to encourage and favor the compromise and settlement of controversies when such settlement is entered into in good faith by competent parties, and is not procured by fraud or overreaching. See cases collected in 10 FLA. JUR. 2d, Compromise, Accord and Release, Section 9. There is no indication in the record, nor any suggestion by the County or the Department, of any bad faith, incompetence, fraud or overreaching involved in the course of the negotiations leading to the execution of the 1987 Settlement Agreement by the same parties in Matis v. Pasco County, et. al., DOAH Case No. 87-4781 (OGC Case No. 87-0386).

Furthermore, the notion of fundamental fairness underlying the doctrines of res judicata and collateral estoppel preclude the County and the Department from now attempting to relitigate the issues or to renounce the conditions set forth in the 1987 Settlement Agreement incorporated into the Department's Final Order in Matis v. Pasco County, et. al., supra. This "fundamental fairness" notion would seem particularly applicable in these proceedings, involving such an inherently controversial subject matter as the permitting by the Department of proposed wastewater treatment plants and related disposal sites adjoining residential property of a citizen of this state.

Finally, I am of the view that the actions of the County and the Department in stipulating to wastewater treatment plant permit conditions that may be more stringent than the minimum statutory and rule standards are to be commended,

rather than condemned. Such stringent stipulated permit conditions promote, rather than frustrate the public interest requirements of Chapter 403, Florida Statutes.

In view of the foregoing, IT IS ORDERED THAT:

1. Paragraph 81 of the Recommended Order is modified by deleting the second sentence in its entirety.

   
   

2. Paragraph 82 of the Recommended Order is modified by:

   
   

   1. Deleting from the first sentence the language that "these plants have been operating for over two years without violations."

      
      

   2. Deleting the last sentence of this paragraph in its entirety.

      
      

3. Paragraph 84 of the Recommended Order is modified to read as follows:

   
   

   84. Five of the proposed RRIBs located closest to Matis' property were removed from the 1987 Pasco County construction permit application

   as a result of the Settlement Agreement. It is the construction of these five RRIBs that Matis here protests.

   
   

4. The conclusions of law in Paragraphs 94 and 95 of the Recommended Order are rejected based on my rulings on Matis' exceptions 3, 4 and 5.

   
   

5. The unnumbered paragraph on page 20 of the Recommended Order recommending issuance of the Embassy Hills and Hudson WWTP operating permits without reference to the 1987 Settlement Agreement is modified to make the issuance of these two operation permits subject to any and all conditions, fulfilled or unfulfilled, set forth in the Settlement Agreement.

   
   

6. The language in unnumbered paragraph 20 of the Recommended Order recommending issuance of the Northwest RRIBs is rejected.

   
   

7. The Recommended Order of the Hearing Officer, as modified in paragraphs A through F above, is adopted and is incorporated by reference herein.

   
   

8. The Department's Southwest District Office is directed to ISSUE operating permits numbers DO51-203666 (Hudson WWTP) and DO51-203667 (Embassy Hills WWTP), subject to the conditions in the Notice of Intent to Issue and subject to the conditions set forth in the 1987 Settlement Agreement between the parties incorporated into the Final Order in Matis v. Pasco County, et. al., DOAH Case No. 87-4781 (OGC Case No. 87-0386).

   
   

9. The County's application for construction permit number DC51-214670 (Northwest RRIB) is DENIED, without prejudice to the County to reapply for a construction permit providing alternative plans for relocating the five (5) percolation ponds identified as numbers "1, 8, 9, 10 and 11."

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 3rd day of December, 1993, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

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

ENDNOTES

1/ Findings of Fact Numbers 4 through 15 of the Recommended Order now before me for review all relate to the proceedings in DOAH Case No. 87-4781. The Recommended Order recites that these unchallenged factual findings are taken from the Prehearing Stipulation executed by counsel for all parties to these consolidated cases.

2/ A copy of this 1987 Stipulated Settlement Agreement in DOAH Case No. 87-4781 was admitted into evidence at the hearing in these consolidated cases as Petitioner's Exhibit 1.

3/ Matis did not object to or challenge that portion of the the proposed Embassy Hills operation permit (DO51-203667) pertaining to the Fox Hollow Percolation Pond System, the Beacon Woods Golf Course Reuse System, the Beacon Woods East Reuse System and the Timber Oaks Golf Course Reuse System. (Recommended Order, paragraphs 55-58)

4/ The County also filed a challenge to the Department's notice of intent to authorize the construction of 8 RRIBs, instead of the 10 RRIBs requested by the County. The County's petition was forwarded to DOAH and became DOAH Case No.

93-3641. The Department subsequently modified its notice of intent with respect to permit number DC51-214670 to authorize the full 10 RRIBs requested by the County, thereby rendering moot DOAH Case No. 93-3641. (Recommended Order, p.3)

5/ Matis owns and resides on property that is adjacent to the existing Embassy Hills Denton Ave. percolation ponds and the proposed Northwest RRIBs and across the street from the Hudson WWTP. (Tr. Vol. 2, pp. 31-33; County's Exhibit 248F)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent by U.S. Mail to the following listed persons:

William W. Deane, Esquire David M. Caldevilla, Esquire Charles D. Hinton, Esquire PO Box 172537

Deane & Hinton, P.A. Tampa, FL 33672 PO Box 7473

St. Petersburg, FL 33734 and by hand delivery to:

K. N. Ayers Ann Cole, Clerk

Hearing Officer Division of Administrative Division of Administrative Hearings

Hearings The DeSoto Building The DeSoto Bldg. 1230 Apalachee Pkwy.

1230 Apalachee Pkwy. Tallahassee, FL 32399-1550

Tallahassee, FL 32399-1550

Francine M. Ffolkes, Esquire Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

this 3rd day of December, 1993.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Telephone: (904)488-9314

Docket for Case No: 92-002488

Orders for Case No: 92-002488