THOMAS H. ADAMS, )
vs. )
) RESORT VILLAGE UTILITY, INC., ) AND DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
Respondents. )
Case No. 01-3172
A formal hearing was held in this case on December 13, 2001, before the Division of Administrative Hearings by its Administrative Law Judge, Suzanne F. Hood.
For Petitioner: Thomas H. Adams, pro se
For Respondent L. Lee Williams, Jr., Esquire Resort Village Williams, Gautier, Gwynn & Utility, Inc: Deloach, P.A.
For Respondent Craig D. Varn, Esquire Department of Department of Environmental Environmental Protection
The issue is whether Resort Village Utility, Inc., and SGI Utility, LLC, are entitled to a renewal of a permit for the construction and operation of a wastewater treatment facility with effluent disposal to a rapid-rate absorption field land application system consisting of three absorption beds on St.
George Island in Franklin County, Florida.
On March 30, 2001, Respondent Department of Environmental Protection (DEP) issued a Notice of Intent to Issue Permit Number FLA010069-002 for an advanced wastewater treatment plant and associated reuse/land application system. The permit names SGI Utility, LLC, and Respondent Resort Village Utility, Inc. (RVU), as co-permittees.
Subsequently, Petitioner Thomas H. Adams (Petitioner) filed a petition for formal hearing to contest the renewal of the permit. By letter dated July 3, 2001, Petitioner filed an amendment to his petition alleging specific violations of Chapter 403, Florida Statutes, and Rule 62-4, Florida Administrative Code.
DEP referred the case to the Division of Administrative Hearings on August 14, 2001. On August 28, 2001, Administrative Law Judge Donald R. Alexander issued a Notice of Hearing scheduling the formal hearing on October 17, 2001.
On September 14, 2001, DEP filed a Motion for Summary Final Order. Petitioner filed a response in opposition to the motion on October 2, 2001. Judge Alexander issued an Order dated October 9, 2001, treating the motion as a motion to relinquish jurisdiction and making the following rulings: (a) Whether the sewer plant was constructed pursuant to a proper permit is a question of law; (b) Whether the existence of two separate ownership entities for the plant and the required absorption beds violates DEP's rules is a question of law; (c) Whether DEP needs to conduct an anti-degradation study is a question of fact, requiring an evidentiary hearing; and (d) Whether DEP must consider additional facts relative to monitoring reports and other potential problems associated with the subject site and the adjacent state-owned property at Nick's Hole is a question of fact, requiring an evidentiary hearing.
On October 31, 2001, Judge Alexander issued an Amended Notice of Hearing. This notice rescheduled the hearing for December 13, 2001. The Division of Administrative Hearings subsequently transferred this case to the undersigned.
During the hearing Petitioner testified on his own behalf and presented the testimony of two additional witnesses.
Petitioner offered five exhibits which were accepted into evidence.
RVU presented the testimony of one witness. RVU offered two exhibits which were accepted into evidence.
DEP presented the testimony one witness. DEP offered nine exhibits which were accepted into evidence.
The Transcript of the proceeding was filed on January 29, 2002. The parties filed their Proposed Recommended Orders on
February 11, 2002.
In 1996, DEP issued Permit No. 235845 (subsequently renumbered Permit No. FLA010069-001) to RVU. The permit was issued pursuant to Adams v. Resort Village Utility, Inc. and Department of Environmental Protection, DOAH Case No. 95-0863 (Final Order February 23, 1996). Petitioner, in the instant case, was the petitioner in the prior case. RVU and DEP, Respondents in the instant case, were respondents in the prior case.
The original permit authorized RVU to construct and operate an advance wastewater treatment facility with associated reuse/land application system (AWT facility) in a proposed mixed-use development on St. George Island in Franklin County, Florida. Mr. Ben Johnson was the owner of the proposed development and the principal of RVU when DEP issued the original permit.
DEP issued the original permit for five years with an expiration date of March 1, 2001. The instant case involves a renewal of the original permit, currently designated as Permit No. FLA010069-002 (the Permit).
Since the issuance of the original permit, the AWT facility has been constructed in accordance with its plans and specifications. However, at the time of the final hearing in the instant case, the AWT facility was not operational.
The original permit contained certain groundwater monitoring requirements. These requirements included baseline monitoring to collect data on certain contaminants or pollutants before the AWT facility becomes operational for comparison to groundwater monitoring after the AWT facility becomes operational. The original permit did not specify the time frame for beginning and ending the monitoring.
RVU furnished DEP with a baseline groundwater monitoring report in December 1997 and June 1998. By letter dated June 15, 1998, Garlick Environmental Associates, Inc., on behalf of RVU, advised DEP that further baseline groundwater monitoring would be suspended until February 1999. RVU properly suspended the baseline groundwater monitoring because of a delay in the construction and operation of the AWT facility. At the time of the final hearing, RVU had not resumed the monitoring.
The AWT facility is scheduled to become operational in incremental stages beginning with 30,000 gallons of effluent per day and increasing to 90,000 gallons of effluent per day. The monitoring requirements in the original permit and the instant Permit are sufficient to show at each stage of operation whether the AWT facility will cause an increase in contaminants in Apalachicola Bay. Because the AWT facility is not currently operational, it is not responsible for causing any pollution.
In October 1999, Mr. Johnson sold the subject property to SGI Limited Partnership, a Florida limited partnership.
Mr. David Wilder is a principal in SGI Limited Partnership and vice-president of SGI Utility, LLC.
On February 10, 2000, RVU filed an application with DEP to transfer the original permit to SGI Utility, LLC. By letter dated February 18, 2000, DEP granted the request to transfer the permit contingent upon approval of the sale of the AWT facility by the Florida Public Service Commission (PSC). The
February 18, 2000, letter states that DEP would change its records to show SGI Utility, LLC, as owner of St. George Island Resort Village domestic wastewater treatment facility. DEP's letter states that it shall be attached to and become part of domestic wastewater Permit No. FLA010069.
On September 1, 2000, SGI Utility, LLC, filed an application with DEP to renew the original permit. The
application indicates that SGI Utility, LLC, is the applicant/owner/operator of the AWT facility. Mr. Wilder signed the application as the authorized representative of SGI Utility, LLC. A professional engineer signed the application in his professional capacity, as well as agent for SGI Utility, LLC.
The application for permit renewal contains a copy of RVU's PSC certificate. The certificate grants RVU authority to provide wastewater service in Franklin County.
The application included the following implementation schedule and completion dates: (a) Begin Construction, September 2000; (b) End Construction, March 2001; (c) Begin Reuse or Disposal, March 2001; and (d) Operational Level Attained, August 2001.
SGI Utility, LLC, enclosed a check payable to DEP in the amount of $1,000 with the permit renewal application. The purpose of the check was to cover review fees.
By letter dated September 28, 2000, DEP requested additional information. On or about October 5, 2000, the professional engineer for SGI Utility, LLC, sent DEP copies of the signed and sealed cover page for the permit renewal application.
DEP subsequently sent SGI Utility, LLC, a copy of a Notice of Application. The notice stated that DEP had received the permit renewal application from SGI Utility, LLC. DEP
expected SGI Utility, LLC, to publish the notice in a newspaper of general circulation. For the reasons set forth below, SGI Utility, LLC, never published this notice.
After SGI Utility, LLC, received the Notice of Application, Mr. Wilder wrote a letter dated October 11, 2000, to DEP. The letter states that SGI Utility, LLC, as the proposed transferee of the Permit, had filed the application to renew the Permit on behalf of RVU, the current holder of the Permit. Mr. Wilder advised DEP that PSC approval was still pending. The letter states as follows in relevant part:
Technically, therefore, SGI Utility, LLC is not yet the holder of the permit, although it is acting with the approval of and as the agent for Resort Village Utility, Inc.
Additionally, should the publication Notice be amended to show Resort Village Utility, Inc. and SGI Utility, LLC as the applicant?
By letter dated November 2, 2000, Mr. Johnson confirmed that Mr. Wilder was authorized to act on behalf of RVU with respect to all matters relating to the renewal and transfer of the Permit, including without limitation, signing all applications, documents, certificates and publication notices. Mr. Johnson's letter also states as follows in relevant part:
This letter will also confirm your statement to Gary Volenac, P.E., that the form of the Notice of Application for the renewal of the permit previously submitted by the Department to Mr. Wilder by letter dated October 11, 2000, is acceptable with the
exception of substituting Resort Village Utility, Inc. for SGI Utility, Inc.
On November 23, 2000, the Notice of Application was published in the Apalachicola Times. The notice stated that DEP announced receipt of an application from David E. Wilder for RVU to obtain a renewal of the Permit.
In a letter dated December 1, 2000, DEP advised SGI Utility, LLC, that it had been 52 days since SGI Utility, LLC, had been notified of deficiencies in the Permit renewal application. DEP reminded SGI Utility, LLC, that failure to supply the requested information might result in permit denial.
Petitioner wrote DEP a letter dated December 4, 2000.
Petitioner was concerned that the newspaper announcement named RVU as the applicant for renewal of the Permit instead of SGI Utility, LLC. Petitioner also noted that RVU had created a small lake on the property close to the AWT facility's largest absorption bed. Petitioner was concerned that flooding after heavy rains in the absorption bed area, together with the addition of the small lake, would present a threat of pollution to Apalachicola Bay.
By letter dated December 6, 2000, SGI Utility, LLC, furnished DEP with a copy of the Notice of Application that was published in the Apalachicola Times on November 23, 2000.
On January 18, 2001, DEP representatives (Joe May and Dave Krieger) met with Petitioner and an employee of SGI Utility, LLC (Morris Palmer), at the site of the AWT facility. The purpose of the visit was to conduct a routine inspection in response to the Permit renewal application and to address Petitioner's concerns.
At the time of the inspection, construction of the wastewater treatment plant had not commenced. Two of the absorption beds had been installed. The third absorption bed had been flagged for construction.
During the meeting on January 18, 2001, Mr. May noted that there could be a concern with rainfall run-on for one of the absorption beds. Mr. May suggested the creation of a berm at the entrance to the bed along the adjacent road to prevent rainfall run-on. Mr. May concluded that implementation of the approved stormwater plan would redirect rainfall run-off from the road.
Mr. May also suggested the creation of a berm for another absorption bed. A berm between dunes adjacent to that bed would prevent run-on to the bed from high tide.
During the meeting, Mr. May and Petitioner discussed the impact of heavy rainfall from a tropical storm in October 1996. The storm flooded isolated areas on St. George Island, including areas in the subject development. The isolated
flooding lasted for several days. However, persuasive evidence received at final hearing indicates that the 1996 storm did not cause prolonged flooding, if any, in the absorption cells.
Similar concerns about flooding in the absorption cells were addressed in the original permit. The absorption cells have been designed to ensure protection to the facility in the event of a large storm. The creation of the berms recommended by Mr. May will provide additional protection from run-on resulting from heavy rainfall. After the meeting on January 18, 2001, Morris Palmer constructed all of the berms as suggested by Mr. May.
During the site visit on January 18, 2001, Mr. May and Petitioner discussed the impact of a small lake or pond created by RVU in the development after issuance of the original permit. The pond is the only change to the 58-acre development that was not contemplated prior to the issuance of the original permit.
The pond is more like an isolated ditch that RVU excavated below groundwater level. RVU used the sand from the ditch to elevate the ground surface in the absorption beds and for other purposes.
The pond is located approximately 527 feet from the AWT plant and 478 feet from the nearest absorption bed associated with the plant. Surface water drainage, if any, from the three absorption beds is away from the pond.
Persuasive evidence indicates that the pond will not interfere with the AWT facility once it begins operation. Additionally, there is no credible evidence that possible flooding in the absorption beds will cause contaminates to collect in the pond and eventually result in a discharge of pollutants to Apalachicola Bay.
Petitioner presented some evidence that the pond might act as a collection point for pollution from sources such as cars, animals, and other above-ground sources. However, the greater weight of the evidence indicates that excavation of the pond will have no impact on the results of groundwater flow modeling and contaminants transport modeling introduced at the prior hearing in DOAH Case No. 95-0863. DEP appropriately referred Petitioner's other concerns about the pond to DEP's Submerged Lands and Environmental Resources Program.
Neither the original permit nor the instant Permit requires an anti-degradation study. Such studies are required only in cases involving a direct discharge to surface waters. In this case, the AWT facility will not result in a surface water discharge.
During the meeting on January 18, 2001, Mr. May acknowledged that ambient monitoring data showed elevated levels of hydrocarbons and nutrients. The elevated hydrocarbons may be caused by traffic on the road and at the airport located near
the absorption beds. The elevated nutrient levels can only be attributed to animals. As stated above, the AWT facility is not operational; therefore, the elevated levels of hydrocarbons and nutrients are not the result of the AWT facility.
On March 30, 2001, DEP issued its Notice of Intent to Issue the Permit to RVU. The Intent to Issue indicates that RVU is the applicant for an application filed by SGI Utility, LLC, and RVU. The Permit lists RVU and SGI Utility, LLC, as co- permittees.
If PSC approves the transfer of RVU's certificate to SGI Utility, LLC, DEP will transfer the Permit to SGI Utility, LLC. Until then, DEP will issue the Permit in the name of both entities.
The Permit sets forth requirements for continued ambient and groundwater monitoring. These requirements, like the ones in the original permit, are sufficient to provide reasonable assurances that operation of the AWT facility will comply with Chapter 62-620, Florida Administrative Code.
Under cover of a letter dated May 22, 2001, Mr. Wilder provided DEP with proof that the Notice of Intent to Issue had been published in the Apalachicola Times on April 12, 2001.
Mr. Wilder signed the letter as treasurer of RVU. The published notice indicates that DEP intends to issue the Permit to RVU.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
Respondent RVU has the burden of proving that it is entitled to a renewal of the Permit. See Florida Department of
Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1991) (the applicant for a permit carries the "'ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency.") RVU has met its burden in this case.
Rule 62-620.335, Florida Administrative Code, states as follows:
A permittee shall submit an application to renew an existing permit at least 180 days before the expiration date of the existing permit.
The permittee shall apply on the appropriate form listed in Rule 62-620.910, F.A.C., and in the manner established in the Department of Environmental Protection Guide to Permitting Wastewater Facilities or Activities Under Chapter 62-620, F.A.C., including submittal of the appropriate processing fee set forth in Rule 62-4.050, F.A.C.
An application filed in accordance with subsections (1) and (2) of this section shall be considered timely and sufficient. When an application for renewal of a permit is timely and sufficient, the existing permit shall not expire until the Department has taken final action on the application for renewal or until the last day for
seeking judicial review of the agency order or a later date fixed by order of the reviewing court.
The late submittal of a renewal application shall be considered timely and sufficient for the purpose of extending the effectiveness of the expiring permit only if it is submitted and made complete before the expiration date.
The following are causes for denying a permit renewal:
Violation by the permittee of any condition of the permit;
The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;
A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit termination;
A change in any condition that requires either a temporary or permanent reduction or elimination of any discharge, any domestic wastewater reuse or disposal system, or any domestic residuals use or disposal practice controlled by the permit;
Failure to submit required information or required fees;
Failure to pay annual fees or penalty assessments for noncompliance; or
After review of the application and the information on monitoring and monthly reports, the Department determines that the applicant has not provided reasonable assurance that the wastewater facility or activity will be operated in accordance with chapter 403, F.S., and applicable Department rules.
Petitioner raises two issues about which there are no disputed issues of material fact. First, Petitioner argues that the AWT facility was constructed without a proper permit.
Second, Petitioner argues that SGI is not an owner of the AWT facility and, therefore, cannot be named as a co-permittee.
Both of these issues are without merit as a matter of law.
As to the first issue, the October 11, 2000, letter from Mr. Wilder as vice-president of SGI Utility, LLC, and the November 2, 2000, letter from Mr. Johnson as president of RVU constitute an amendment to the application filed by SGI Utility, LLC. It is clear that SGI Utility, LLC, filed the application on RVU's behalf.
RVU's application was timely and sufficient in all other respects. RVU constructed the AWT facility under the original permit, which will not expire until DEP issues a final order on the application or "until the last day for seeking judicial review of the agency order or a later date fixed by order of the reviewing court." Rule 62-620.335(3), Florida Administrative Code.
As to the second issue, DEP will take final agency action to transfer the Permit to SGI Utility, LLC, when the PSC approves the sale of the utility. Until then, it is appropriate for DEP to list RVU and SGI Utility, LLC, as co-permittees on the Permit. There are no statutes or rules that prohibit the naming of co-permittess.
The notices published in the Apalachicola Times on November 23, 2000, and April 12, 2001, sufficiently identify the
AWT facility by permit number and project description. The failure of the notices to reference SGI Utility, LLC, as a co-applicant/co-permittee with RVU is not fatal to the Permit renewal because RVU currently holds the Permit.
Based on the greater weight of the evidence, the Permit should be granted for the following reasons: (a) RUV has not violated any condition of the original permit; (b) RVU and SGI Utility, LLC, have fully disclosed all relevant facts and have not misrepresented any relevant facts; (c) The AWT facility will not endanger human health or the environment; (d) There is no change in any condition that requires either a temporary or permanent reduction or elimination of any discharge or any domestic residuals use or disposal practice controlled by the Permit; (e) RVU has submitted all required information and fees;
(f) RVU does not owe any annual fees or penalty assessments for noncompliance; and (g) RVU has provided reasonable assurance that the AWT facility will be operated in accordance with Chapter 403, Florida Statutes, and Rule 62-620, Florida Administrative Code. See Rule 62-620.335(5), Florida Administrative Code.
That DEP enter a final order granting RVU and SGI Utility, LLC, a renewal of Permit No. FLA010069-002.
DONE AND ENTERED this 28th day of February, 2002, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2002.
Thomas H. Adams Post Office Box 791
Craig D. Varn, Esquire
L. Lee Williams, Jr., Esquire
Williams, Gautier, Gwynn & DeLoach, P.A. 2010 Delta Boulevard
Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard
Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
