STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID BIDDULPH, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5033

) VOLUSIA COUNTY AND STATE OF ) FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing in New Smyrna Beach, Florida, on November 9-10, 1992, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Harry Stewart, Esquire

Ackerman, Senterfitt & Eidson, P.A. Post Office Box 321

Orlando, Florida 32802-0231

For Respondent Volusia County:

Jamie E. Seaman

Assistant County Attorney

123 West Indiana Avenue DeLand, Florida 32721-4613

For Respondent Department of Environmental Regulation:

Douglas MacLaughlin, Esquire John Chaves, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Environmental Regulation (DER) was provided reasonable assurance as required by Rule 17-4.070, F.A.C., that the granting of a permit pursuant to the requirements of Rule 17- 604, F.A.C., to Volusia County for the construction of a closed wastewater collection and transmission system would not result in discharges or emissions or cause pollution in contravention of DER standards or rules.

PRELIMINARY STATEMENT

At the hearing, Petitioner Biddulph stipulated that the wastewater collection and transmission system as designed met the technical and engineering design requirements of Rule 17-604, F.A.C.

Volusia County filed a Motion in Limine requesting that Petitioner be precluded from presenting evidence regarding alleged violations of the Indian River Lagoon System and Basin Act of 1991, Chapter 90-262, Laws of Florida, evidence of bacteriological samples on the Indian River Lagoon, and allegations that the wastewater system was not in compliance with the Volusia County Comprehensive Plan. The Motion in Limine was granted as it applied to the Volusia County Comprehensive Plan. See, Taylor v. Cedar Key Special Water and Sewerage District and DER 14 FALR 203 (Fla. 1st DCA 1991) and Council of the Lower Keys v. Toppino & Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1983). The Motion in Limine was denied as it applied to the Indian River Lagoon System and Basin Act of 1991, and the bacteriological samples.

Petitioner Biddulph presented the oral testimony of Robert R. Bullard, (expert) Pete Koreleich, Joel Steward, and Noble Bielby. Respondent Volusia County presented the oral testimony of Franklin Marshall (expert). Respondent DER presented the oral testimony of Christiane Ferraro (expert).

Petitioner had seven exhibits admitted out of ten offered in evidence.

Respondent Volusia County had one exhibit admitted in evidence. Respondent DER had one exhibit admitted in evidence. There was one joint composite exhibit.

Official recognition was taken of the Indian River Lagoon and Basin Act, Chapter 90-262, Laws of Florida and of Volusia County Ordinances Nos. 79-3 and 91-20.

No transcript was ordered. All timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. David Biddulph is a resident of Volusia County, Florida and a resident of the unincorporated area known as Bethune Beach.

   
   

2. County of Volusia, a charter county, is the applicant for a proposed wastewater collection and transmission system pursuant to Section 403.0878, F.S. [1991] and Rule 17-604, F.A.C.

   
   

3. The Department of Environmental Regulation is the state agency charged with the responsibility of reviewing permits under Chapter 403, F.S. and its applicable rules.

   
   

4. Petitioner Biddulph stipulated that the wastewater collection and transmission system as designed met the technical and engineering design requirements of Rule 17-604, F.A.C.

   
   

5. Bethune Beach is an unincorporated area located on the barrier island separating the Atlantic Ocean and the Indian River Lagoon.

   
   

6. Volusia County contracted with the environmental engineering firm of Marshall McCully & Associates to determine the feasibility of designing and

   constructing a wastewater collection and transmission system for the Bethune Beach area.

   
   

7. The St. Johns River Water Management District is directed by the Indian River Lagoon System and Basin Act, Chapter 90-262, Laws of Florida, to identify areas where existing septic tank systems are considered a threat to the water quality of the Indian River Lagoon System.

   
   

8. The St. Johns River Water Management District began developing a general methodology to access areas which are potential sources of pollution in the Indian River Lagoon System. This general methodology was called "Problem Area Index" (PAI).

   
   

9. The PAI was intended to be used as an initial screening device in conjunction with other relevant research data or field verification to identify the problem areas.

   
   

10. Volusia County's Public Health Unit, a division of the State of Florida Health and Rehabilitative Services Department, (HRS) utilized the proposed PAI to evaluate the southeast area of Volusia County.

    
    

11. The Volusia County Public Health Unit entered into a contractual agreement with the St. Johns River Water Management District to research and delineate those areas in the southeast part of Volusia County with the potential to cause pollution to the upper Indian River Lagoon surface waters. The foregoing report concluded that the Bethune Beach area was an area of special concern and recommended that development of sewage treatment facilities be provided to this area.

    
    

12. Credible competent evidence shows that the existing soils in Bethune Beach have high shell content and a high water table which are not conducive to installation of septic tank systems for sewage disposal, although the houses there now have such septic tanks.

    
    

13. The conceptual plan prepared by Marshall McCully & Associates which was presented to Volusia County concluded there was a need to construct a wastewater collection and transmission system, and this plan was adopted by the Volusia County Council after holding the requisite public hearings. Volusia County Ordinance 79-3 authorizes the Volusia County Council to establish special service districts to provide water services and any and all other essential facilities. The county may initiate service in any area in its discretion without receiving an initiating petition from residents. Volusia County also created a special assessment for the installation of the system.

    
    

14. Volusia County contracted with Marshall McCully & Associates to obtain the necessary permits for the construction of the wastewater collection and transmission system.

    
    

15. Marshall McCully & Associates on behalf of Volusia County applied for a permit from DER to construct a domestic wastewater collection transmission system.

    
    

16. In implementing Rule 17-604, F.A.C., DER policy does not require domestic wastewater collection and transmission system permit applicants to demonstrate that septic tanks simply would not work in the area served by the collection system.

17. If the DER permit is granted, the septic tanks now lawfully present on Bethune Beach would have to be removed.

    
    

18. The Volusia County application to construct a domestic wastewater collection and transmission system indicates that the sewage treatment facility serving the project would be the City of New Smyrna Beach Utilities Commission Pollution Control Plant. DER has already permitted that plant pursuant to Rule 17-600 F.A.C. under permit D064-191532 with an expiration date of June 30, 1995.

    
    

19. The design capacity permitted under the existing permit for New Smyrna Beach's plant is 4,000,000 gallons a day, and the current average daily flow over the past twelve months has been approximately 2 and 1/2 million gallons a day. The city plant is currently operating within the parameters of its DER permit.

    
    

20. Additional flow to the city plant from the county's proposed wastewater collection and transmission system has been reasonably estimated at 250,000 gallons per day. The only evidence of other amounts is speculative and not probative.

    
    

21. DER implementation policy is to issue permits for new collection and transmission systems only where construction of a new collection and transmission system would connect to a sewage treatment plant which already has a permit capable of accommodating the new collection and transmission system. DER policy also does not contemplate granting permits to build waste water collection and transmission systems in such a manner as to increase the amount of water running through currently permitted sewage treatment plants beyond the maximum capacity for which the existing sewage treatment plant itself is currently permitted.

    
    

22. In the present instance, Volusia County's proposed collection and transmission system, if permitted pursuant to DER's expressed permit conditions or terms (intent to grant), requirements, would not increase the amount of water running through the city receptor plant beyond the 4,000,000 gallon capacity which has already been reviewed by DER, is currently permitted by DER, and is currently subject to enforcement by DER. Although the county's proposed collection and transmittal system would increase the city plant's actual output by 250,000 gallons, the city plant's total output would thereafter still be 1,250,000 gallons below the plant's current permitted capacity.

    
    

23. DER implementation policy also is to issue permits for construction of collection and transmission systems only if the sewage treatment plant to which the system would connect is properly treating the waste as required by the plant's current DER operating permit. The New Smyrna Beach Utilities Commission Pollution Control Plant that would receive domestic wastewater from the collection and transmission system proposed by Volusia County's permit application pending in this case is currently properly treating the waste it receives.

    
    

24. The city plant currently discharges its effluent into the Indian River Lagoon System as allowed by its DER permit.

    
    

25. The city plant also currently has the permitted capacity to receive the level of reasonably anticipated waste which will be transmitted by the collection and transmission system proposed by the county.

26. Under the terms of DER's proposed permit for Volusia County's closed collection and transmission system, the city plant would not be authorized to increase the amount of treated wastewater for which the city plant is currently permitted.

    
    

27. In review of permit applications, DER interprets the Indian River Lagoon Act to prohibit any new permitted discharge, or permitted increased loadings. This is a reasonable interpretation and entitled to great weight both as an agency interpretation of a statute it administers and because the agency's statutory interpretation reasonably acknowledges efficacy of the original DER permitting review of the existing city sewage treatment plant, the requirement of DER review of the county's pending application for a collection and transmission system, and the permitting and enforcement oversight of both those governmental entities' operations by the same agency, DER.

    
    

28. Although the New Smyrna Beach Utilities Pollution Control Plant is currently operating within the parameters of its DER permit, a Consent Order has previously been negotiated between the city and DER to accomplish upgrading of the pollution control plant to meet new federal regulations for such facilities. The Consent Order requires the New Smyrna Beach Utilities Commission to begin a program of wastewater reuse and provide for land application of the treated effluent by 1995. The pollution control plant is on schedule for the removal of the effluent. No effluent will be discharged into the Indian River Lagoon System, except under limited wet weather discharge permits, which have been applied for. The Indian River Lagoon Act makes provision for wet weather discharge exceptions as do DER's and the city's actions pursuant to the Consent Order. See, Section 2. (3)(c) of the Indian River Lagoon Act.

    
    

29. One of the intents of the Consent Order is to ensure that the treatment plant is in compliance with the Indian River Lagoon Act by the date of July 1, 1995 specified within that Act at Section 2. (2). The city plant permit expires June 30, 1995.

    
    

30. If the New Smyrna Beach Utilities Commission does not receive wet weather discharge permits for its plant, it has planned to implement alternatives, such as onsite storage, to meet the requirements and anticipated enforcement by DER of the Indian River Lagoon Act.

    
    

31. The New Smyrna Beach Utilities Commission Pollution Control Plant has an extensive inspection and maintenance program, which includes a television system that internally inspects the pipes for evidence of seepage.

    
    

32. The New Smyrna Beach Utilities Commission Pollution Control Plant is regularly inspected by, and provides monthly operational reports to, DER so that DER can enforce any environmental concerns under the existing plant permit. The plant's operation under its current permit is also subject to review when that permit becomes subject to renewal due to its expiration date of June 30, 1995.

    
    

33. Opinion testimony to the effect that increased acidity of the effluent might permeate the county pipes or the city pipes was speculative and unpersuasive.

    
    

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause, pursuant to Section 120.57(1), F.S.

35. The permit applicant bears the burden of proof and duty to go forward to demonstrate that it has provided reasonable assurance that the proposed project will not violate DER standards. See, Rules 17-4.070(1), 17- 103.130(1)(a); F.A.C. J.W.C. v Department of Transportation and Department of Environmental Regulation, 396 So.2d 778, 787 (Fla. 1st DCA 1981).

    
    

36. The applicable rule for design and operation requirements for domestic wastewater collection systems is Rule 17-604, F.A.C. Competent substantial evidence established there is reasonable assurance that these standards will not be offended. Additionally, the Petitioner stipulated so as to render such concerns moot.

    
    

37. The focus of Petitioner's concern herein has been that the facility to be created pursuant to the county's application/permit would offend the Indian River Lagoon Act, Chapter 90-262 Laws of Florida which provides there shall be "no new discharges or increased loadings." Petitioner's argument is based on the isolated fact that increased wastewater eventually will be discharged into the Indian River Lagoon System, not from the closed collection and transmission line for which a permit is now sought by Volusia County, but from the City of New Smyrna Beach's Pollution Control Plant, thus creating a greater degradation to the surface waters.

    
    

38. Section 2 of the Indian River Lagoon Act reads as follows:

    
    

    Section 2. Elimination of sewage treatment facility discharges into the Indian River Lagoon System.--

    1. No new discharges or increased loadings from the existing sewage treatment facilities into the Indian River Lagoon System are permitted, except as provided in subsection (3).

    2. All existing sewage treatment facility discharges into the Indian River Lagoon System must be eliminated before July 1, 1995, except as provided in subsection (3).

    3. The Department of Environmental Regulation may grant an exception to subsection (1) or subsection (2) only in the following circumstances:

       1. If the applicant conclusively demonstrates that no other practical alternative exists and the discharge will receive advanced waste treatment or a higher level of treatment; or

       2. If the applicant conclusively demonstrates that the proposed discharge will not result in violation of state water quality standards, either by itself or in combination with other discharges, and will not hinder efforts to restore the water quality of the Indian River Lagoon System; or

       3. If the applicant's discharge is intermittent surface water discharge occurring during wet weather conditions subject to the requirements of department rules.

39. The agency's interpretation of Section 2.(1) to the effect that the Act prohibits any new permitted discharges or permitted increased loadings into the Indian River Lagoon, is entitled to great weight. Construction of a statute by an agency responsible for its administration is entitled to great weight and should not be overturned unless clearly erroneous. See, Shell Harbor Group, Inc. v. Department of Business Regulation, 487 So. 2d 1141, (Fla. 1st DCA 1986). Even so, the statutory construction must be a permissible one and not "any conceivable construction of a statute . . . irrespective of how strained or ingeniously reliant on implied authority it might be". State of Florida, Board of Optometry, et al v. Florida Society of Ophthalmology, et al, 13 FLW 2754 (Fla. 1st DCA 1988).

    
    

40. A clear intent of the Indian River Lagoon Act is to get areas presently served improperly by septic tank or package plant sewage disposal to connect up as soon as possible to centralized collection and treatment systems. See, the "intent" portions of the Act and Section 4. entitled, "Centralized sewage collection and treatment systems." Although this methodology will certainly result in some increased loadings out of centralized plants, the Act presumes that situation preferable to improper discharges from septic tanks and package plants. As long as the central treatment facilities do not exceed existing permitted discharge limits and loadings which have already been accounted-for in DER's overall permitting and pollution control scheme, such temporarily increased new discharges or increased loadings should not be interpreted as "new discharges or increased loadings from existing sewage treatment facilities" which are prohibited under the Act.

    
    

41. Citizen concerns over the total cost of the project, the local government's assessment to cover the cost of the system, and the additional cost of removing septic tanks are not within the purview of DER's permitting concerns or expertise. Neither DER nor the Indian River Lagoon Act has any requirement that the permit applicant prove that the existing septic tanks are failing or incapable of handling the current residents. Nonetheless, some evidence of anticipatory problems with septic tanks was, in fact, introduced in evidence, and the Indian River Lagoon Act clearly recognizes improper use of septic tanks as a threat. See, intent portions of the Act.

    
    

42. An agency has broad discretion in interpretation of the statutes it administers, and since the DER's interpretation of the Indian River Lagoon Act is reasonable its interpretation should be followed. See, Goldring v. Department of Environmental Regulation, 477 So.2d 532 (Fla. 1985); Department of Business Regulation v. Martin County Liquors, Inc., 574 So.2d 170 (Fla. 1st DCA 1991).

    
    

43. There will be no new discharge or increased loadings permitted as a result of this project because the city's treatment facility, into which this county collection and transmission system is directed, already has a permitted capacity to treat and discharge 4 million gallons a day, and it is presently discharging only 2.5 million gallons per day. DER previously reviewed and approved an application/permit to the City of New Smyrna Beach which determined that that entity's pollution control plant has sufficient capacity to receive more than the additional 250,000 gallons per day which will result from the county's proposed project. Moreover, the New Smyrna Beach plant is currently operating under a valid DER permit. Since the New Smyrna plant is operating under a separate and distinct permit granted to a different governmental entity than the collection and transmission system, that permit should not impede this one except upon the clearest proof of violation. The plant is not in violation and is on a clean-up schedule under DER oversight in accord with the intent of the Indian River Lagoon Act.

44. This case demonstrates that the additional proposed discharge will not result in a violation of water quality standards. Considering the Consent Order and the city treatment plant's clean-up schedule, the county's pending application/permit also should not hinder efforts to restore the Lagoon's water quality on the timetable prescribed in the Indian River Lagoon Act. See, Section 2. (3) (b) of the Indian River Lagoon Act. Upon the foregoing facts and reasonable interpretation of the Indian River Lagoon Act, it is clear that granting Volusia County's pending application pursuant to DER's intent to issue will not violate the Indian River Lagoon Act.

    
    

45. This is not truly a case of "secondary impact," as that term has been previously understood in environmental permitting. Rather, Petitioner's approach to the Indian River Lagoon Act suggests that with every new permit application of whatever kind, all previous treatment facility permits must be reconsidered. Such a construction is impractical and would impede DER fulfilling its statutory mandate to create an overall pollution control scheme for this state's environment.

    
    

46. Regardless of the Indian River Lagoon Act, if there were evidence that, as a result of this proposed project, there would be a violation of the applicable water quality standards, the permit should not be issued. While not specifically stated in Rule 17-604, the agency clearly has such review authority. See Section 403.087(4), F.S.; Rule 17-4.070 F.A.C. Competent substantial evidence was provided at formal hearing to the effect that no such water quality violations would occur, either from the collection and transmission system itself or from the existing sewage treatment facility as a result of connecting with the proposed collection and transmission system. Therefore, the application cannot be denied on that account.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED

That the Department of Environmental Regulation enter a final order dismissing the petition of Petitioner and granting the County of Volusia's application upon the terms and conditions set out in the agency's proposed permit (intent to grant).

RECOMMENDED this 22nd day of January, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1993.

APPENDIX TO RECOMMENDED ORDER 92-5033 DOAH CASE NO. 92-5033

The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF)

Petitioner Biddulph's PFOF:

1-2,6 Accepted excepted for unnecessary, subordinate, or cumulative material.

Applicant/Respondent Volusia County's PFOF:

1-11,13-29 Accepted except for unnecessary, subordinate, or cumulative material.

12 Accepted in substance but not as stated.

30-31 Accepted, but irrelevant, immaterial and non- dispositive of the disputed issues of material fact.

Respondent DER's PFOF:

1-17,19-29 Accepted except for unnecessary, subordinate, or cumulative material.

18 Rejected as proposed because as proposed, it is a proposal of law, not fact; accepted under "conclusions of law" portion of RO.

30-31 Accepted, but irrelevant, immaterial, and non- dispositive of the disputed issues of material fact.

COPIES FURNISHED:

Harry A. Stewart, Esquire 5807 South Atlantic Avenue New Smyrna Beach, FL 32169

Douglas A. MacLaughlin, Esquire John Chaves, Esquire

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, Esquire

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: 92-005033

Orders for Case No: 92-005033