STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

DUMP THE PUMPS, INC., ET AL., )

)

Petitioners, )

)

OGC CASE NOS. 14-0228

14-0243

Respondents. )

)

FINAL ORDER

An Administrative Law Judge ("ALJ") with the Division of Administrative Hearings ("DOAH") on February 3, 2015, submitted a Recommended Order ("RO") to the Department of Environmental Protection ("DEP" or "Department") in the above captioned administrative proceedings. A copy of the RO is attached hereto as Exhibit

A. On February 18, 2015, counsel for the Petitioners, Dump the Pumps, Inc., ("DTP"), Theresa Raven, Daniel Fitch, Jim Skura, Margaret Schwing, Gail Kulikowsky, and Deborah Curlee ("individual Petitioners"), filed a Motion for Extension of Time to File Exceptions. The Motion was denied by Order dated February 19, 2015, and the Petitioners were ordered to file their exceptions by 5:00 p.m. on February 20, 2015.

On February 20, 2015, pursuant to Florida Administrative Code Rule 28- 106 .105(3), counsel for the Petitioners filed a Motion and Notice of Withdrawal as

Counsel to the Petitioner DTP. The Motion to Withdraw was served on the President of DTP. The Motion to Withdraw is hereby granted for good cause shown.

Filed March 27, 2015 8:00 AM Division of Administrative Hearings

The Petitioner DTP timely filed its written Exceptions on February 20, 2015. The individual Petitioners did not file any Exceptions. The Respondents, DEP and Florida Keys Aqueduct Authority ("FKAA"), filed responses on February 26 and 27, 201 5, respectively. This matter is now on administrative review before the Secretary of the

Department for final agency action.

BACKGROUND

In 2010, the Florida Legislature enacted section 403.086(10) of the Florida Statutes ("F.S."). In that statute, the Legislature found that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. The statute further found that the only practical and cost-effective way to improve wastewater management in the Florida Keys is for the local governments in Monroe County - which includes FKAA - to timely complete the wastewater and sewage treatment and disposal facilities pursuant to the June 2000 Monroe County Sanitary Master Wastewater Plan ("Master Plan"). To that end, the statute mandates completion by December 31, 2015, of certain wastewater facilities identified in the Master Plan, including those at issue in these proceedings.

To implement the Master Plan and this legislative mandate, Monroe County and FKAA entered into an interlocal agreement, which established FKAA's responsibilities to design, construct, operate, and maintain the central wastewater collection and treatment system. The Cudjoe Regional Wastewater System ("CRWS") is a component of this

central wastewater collection and treatment system. It will serve the Cudjoe Regional Wastewater Service Area, which covers portions of Lower Sugarloaf Key, Upper Sugarloaf Key, Cudjoe Key, Summerland Key, Ramrod Key, Little Torch Key, and Big Pine Key. The CRWS consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and a wastewater treatment plant. These proceedings only involve challenges to certain components of the wastewater collection system.

On various dates, FKAA applied to DEP for permits to authorize construction of portions of the CRWS, which includes the Permits at Issue. On various dates, DEP issued notices of intent to issue permits to FKAA, including the four permits at issue in these proceedings ("Permits at lssue").1 The Petitioners timely challenged the proposed agency actions to grant the Permits at Issue, as well as other permits no longer at issue in these proceedings. The final hearing was held on September 29 and 30, and October 1, 2014, in Key West, Florida. The five-volume Transcript was filed on November 13, 2014, and the parties were given ten days, until November 24, 2014, to file their proposed recommended orders. The proposed recommended orders were timely filed and the ALJ subsequently issued the RO on February 3, 2015.

1. The four Permits at Issue authorize the dryline construction of portions of the subject wastewater collection system: (1) Permit 19 for Upper Sugarloaf Key, (2) Permit 25 for Cudjoe Key, (3) Permit 18 for Big Pine Key North, and (4) Permit 27 for Big Pine Key

   South. (RO ffll 29-39).

   SUMMARY OF THE RECOMMENDED ORDER

   
   

   In the RO, the ALJ recommended that the Department enter a final order approving issuance of the Permits at Issue. (RO at pages 89-90). The ALJ concluded that FKAA satisfied its burden to establish prima facie entitlement to the Permits at Issue. (RO,r,r 86 , 9 5, 101, 110, 119, 125, 135, 140, 154, 165, 168, 191, 207, 246, 247,

   251). The ALJ further concluded that the Petitioners alleged numerous grounds for

   
   

   denial of the Permits at Issue, but did not prove that the proposed wastewater collections systems, as designed, fail to comply with or violate applicable DEP rules and

   technical manuals and other applicable standards. (RO ,r,r 85 , 94 , 100 , 109 , 11 8 , 12 4,

   134, 139, 153, 164, 169, 174, 180, 183, 190, 208, 210, 249). Thus, the ALJ ultimately

   
   

   concluded that FKAA provided reasonable assurances that the wastewater collections systems met all applicable permitting standards and requirements. (RO 1f 250).

   Standing

   
   

   The ALJ found that the individual Petitioners demonstrated standing to initiate and participate as parties to these proceedings. (RO ,r 217 ). They presented evidence aimed at showing that the grinder pumps and other features of the wastewater

   collection systems were inadequately or incorrectly designed and inappropriate for use in the Florida Keys, and that. as a result, the pumps and other system components would malfunction or fail, releasing wastewater, causing environmental harm and

   property damage. (RO ,r 217). The ALJ concluded that although the Petitioners did not

   prove these allegations, they presented evidence at the hearing showing that they have a substantial interest in the use and enjoyment of the nearshore environment in the Florida Keys and in their own property, and that they would suffer significant injury to

   these interests if they were correct regarding the alleged wastewater collection systems design flaws, failure, and noncompliance with DEP rules. (RO ,m 201-206, 217).

   The ALJ concluded that DTP met the test for associational standing. (RO ,m 219-

   222). The ALJ found that the evidence established that a substantial number of DTP's members reside on or near property that may be serviced by a grinder pump, and a

   substantial number of DTP's members use and enjoy the nearshore waters and environment of the Florida Keys. (RO ,r,r 195-197, 219). The ALJ found that DTP was organized for the specific purpose of opposing the use of grinder pumps as part of the

   CRWS wastewater collection systems, and these proceedings were brought to oppose

   
   

   issuance of DEP permits authorizing the construction of wastewater collection systems that include grinder pumps as a component. Thus, the subject matter of these

   proceedings is within DTP's general scope and purpose. (RO ,r,r 194, 220). The ALJ

   further found that DTP's request that the Permits at Issue be denied is the type of relief appropriate for DTP to receive on behalf of its members. (RO ,r 221).

   STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

   
   

   Section 120.57(1)(1), Florida Statutes, prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."

   § 120.57(1)(1), Fla. Stat. (2014); Charlotte Cty. v. IMC Phosphates Co., 18 So. 3d 1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So. 2d 61 (Fla. 1st DCA 2007). The term "competentsubstantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather, "competent

   substantial evidence" refers to the existence of some evidence (quantity)as to each essential element and as to its admissibility under legal rules of evidence. See e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So. 2d 287, 289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So. 3d 1191, 1192 (Fla. 5th DCA 2010).

   A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses . See, e.g., Rogers v. Dep't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of Envtl. Prot., 695 So. 2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands Cty. Sch. Bd., 652 So. 2d 894 (Fla. 2d DCA 1995). If there is competent substantial evidence to support an ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Construction Co. v. Dyer, 592 So. 2d 276, 280 (Fla. 1st DCA 1991); Conshor, Inc. v.

   Roberts, 498 So. 2d 622 (Fla. 1st DCA 1986).

   
   

   The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting this decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. V. State, Dep't of HRS, 462 So. 2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v.

   Orlando Utils. Comm'n, 436 So. 2d 383, 389 (Fla. 5th DCA 1983). In addition, an agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994).

   Section 120.57(1)(1) , F l ori da Statutes, authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it has substantive jurisdiction ." See Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001); L.B. Bryan & Co. v. Sch. Bd. of Broward Cty., 746 So. 2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001). Considerable deference should be accorded to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such agency interpretations should not be overturned unless "clearly erroneous." See, e.g., Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); Dep't of Envtl. Regulation v. Goldring, 477 So. 2d 532, 534 (Fla.

   1985). Furthermore, agency interpretationsof statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretat ions are "permissible" ones. See, e.g., Suddath Van Lines, Inc. v.

   Dep't of Envtl. Prof., 668 So. 2d 209, 212 (Fla. 1st DCA 1996).

   
   

   Agencies do not have jurisdiction, however, to modify or reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues susceptible to ordinary methods of proof that are not infused with [agency] policy considerations," are not matters over which the agency has "substantive jurisdiction." See Martuccio v. Dep't of Prof'/ Regulation, 622 So. 2d 607, 609 (Fla. 1st DCA 1993); Heifetz v. Dep't of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985); Fla. Power & Light Co. v. Fla. Siting Bd., 693 So. 2d 1025, 1028 (Fla. 1st DCA 1997).

   Evidentiary rulings are matters within the ALJ's sound "prerogative . . . as the finder of fact" and may not be reversed on agency review. See Martuccio, 622 So. 2d at 609.

   RULINGS ON EXCEPTIONS

   
   

   A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl.

   Coalition of Fla., Inc. v. Broward Cty., 586 So . 2d 1212, 1213 (Fla. 1st DCA 1991); see

   
   

   also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003). However, an agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction, even when exceptions are. not filed. See

   § 120.57(1)(I), Fla. Stat. (2014); Barfield v. Oep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee Council, 79 v. Daniels, 646 So. 2d 813 , 816 (Fla. 1st DCA 1994).

   General Exceptions

   
   

   DTP's Exceptions contain general statements (paragraphs 1 through 4) directed to the RO. These general statements do not comply with the requirements of Section 120.57(1)(k), Florida Statutes. Under Section 120.57(1)(k), an "agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record."§ 120.57(1)(k,) Fla. Stat. (2014).

   Therefore, to the extent that DTP's general statements can be considered as "exceptions," they are denied.

   FKAA's Request to Strike/Deny Exceptions

   
   

   FKAA's response to DTP's written exceptions requests that the Department strike or deny the exceptions on the ground that the exceptions are a nullity because DTP is no longer represented by an attorney. As authority, FKAA cites case law that states a corporation, unlike a natural person, cannot represent itself and appear in a court of law without an attorney. See Sztienbaum v. Kaes /nversiones y Va/ores , C . A., 476 So. 2d 247,248 (Fla. 3d DCA 1985). FKAA also argues that, although serving as DTP's president, Mr. Banks Prevatt (who signed and filed DTP's written exceptions) , is not an attorney and is not authorized as DTP's qualified representative. See § 120.57(1)(b), Fla. Stat. (2014); Fla. Admin. Code R. 28-106.106.

   Contrary to FKAA's argument and as noted in footnote 10 of the Sztienbaum

   
   

   case, a corporation can represent itself in administrative proceedings under Chapter 120 of the Florida Statutes. See Sztienbaum, 476 So. 2d at 252, n. 1O; see also Magnolias Nursing and Convalescent Center v. Dep't of Health and Rehabilitative Services, 428 So. 2d 256, 257 (Fla. 1st DCA 1982)(reflecting that self-presentation by corporations is permissible in administrative proceedings).

   Therefore, FKAA's request to strike or deny DTP's written exceptions, signed and filed by DTP's president, is denied.

   PETITIONER DTP'S EXCEPTIONS

   
   

   Scouring Velocity

   
   

   DTP takes exception to paragraphs 71-83 and 86, where the ALJ ultimately found that FKAA proved that the wastewater collection systems, as designed, will not experience wastewater backups or releases into the environmentas a result of

   inadequate scouring velocity. (RO 1f 86). DTP essentially objects to the ALJ's resolution of conflicting expert testimony and judgments regarding witness credibility. DTP also

   seeks to have the Department make new or additional factual findings that were not made by the ALJ. As outlined in the standard of review, the Department may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers v. Dep't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005). The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by the Department, absent a complete lack of any competent substantial evidence of record supporting the decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009).

   The rulings below show that the ALJ's findings in paragraphs 71-83 and 86 are supported by competent substantial record evidence.

   Exception to paragraph 71 - DTP agrees with the ALJ's findings in paragraph

   
   

   71. Accordingly, this exception is denied.

   
   

   Exception to paragraph 72 - DTP argues that paragraph 72 is "partially correct." In paragraph 72, the ALJ summarized the testimony of Mr. Maynard (one of the Petitioners' experts) in order to explain the basis for the Petitioners' allegation that the system will not achieve sufficient scouring velocity to prevent accumulation of solids in the pipes. Paragraph 72 is supported by competent substantial record evidence, including the testimony of Mr. Maynard (Joint Ex. 65, Bates 02341-02351, Maynard).

   Accordingly, this exception is denied.

   Exception to paragraph 73 - DTP argues that paragraph 73 is an "[i]n correct interpretation." In essence, DTP takes exception to the ALJ's finding and conclusion that under applicable Department rules, the Ten States Standards manual requirement

   of 2 feet-per-second ("fps") minimum flow, does not mandatorily apply to the CRWS because the system is an "alternative collection/transmission system." (RO ,r 7 3) . DTP

   did not take exception to other important findings and conclusions made by the ALJ

   regarding the same determination as paragraph 73.2 (RO ,m 25, 28 , 237 , 238, 239).3 Competent substantial record evidence supports paragraph 73. (Mcl aurin, Tr.

   Vol. 11, pp . 339 - 340 ; Mathews, Tr. Vol. IV, pp. 557-561 and 617-618). Accordingly, this exception is denied.

   Exception to paragraph 74 - DTP argues that paragraph 74 is "[p]artially

   
   

   correct." DTP essentially objects to the ALJ's reliance on the testimony of FKAA 's expert witness - Rene Mathews. The ALJ's findings are supported by competent substantial record evidence in the form of the expert's testimony. (Mathews, Tr. Vol. IV, pp. 558, 617). The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record

   
   

   
   

2. A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envt /. Coalition of Fla., Inc. v. Broward Cty., 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); see a/so Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003).

3 DTP's general statement in paragraph 2 of its Exceptions regarding the RO paragraphs to which it did not take exception "due to time constraints," does not comply with section 120.57(1)(k) regarding written exceptions. See§ 120.57(1)(k), Fla. Stat. (2014).

supporting the decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009).

Accordingly, this exception is denied.

Exception to paragraph 75 - DTP argues that paragraph 75 is "[p]artially correct." DTP essentially objects to the ALJ's reliance on the testimony of DEP's expert witness - Al Mclaurin. The ALJ's findings are supported by competent substantial record evidence including the expert's testimony. (Mcl aurin, Tr. Vol. II, pp. 222-223 , 341-342; Joint Ex. 2, Bates 101, 113-114). The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting the decision. Id. Accordingly, this exception is denied.

Exception to paragraph 76 - DTP argues that paragraph 76 is "[p]artially correct." DTP essentially objects to the ALJ's reliance on the testimony of FKAA's expert witness - Oscar Bello. The ALJ's findings are supported by competent substantial record evidence including the expert's testimony. (Bello, Tr. Vol. V, p. 693). The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting the decision. Id. Accordingly, this exception is denied.

Exception to paragraph 77 - DTP essentially objects to the ALJ's reliance on the testimony of DEP's expert witness - Gary Maier. The ALJ's findings are supported by competent substantial record evidence including the expert's testimony. (Maier, Tr. Vol. V, pp. 806-808). The ALJ's decision to accept the testimony of one expert witness

over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting the decision. Id. Accordingly, this exception is denied.

Exception to paragraph 78 - Competent substantial record evidence supports this finding of fact. (Mathews, Tr. Vol. IV, pp. 515-521; Joint Ex. 35, Bates 1410).

Accordingly, DTP's exception to paragraph 78 is denied.

Exception to paragraph 79 - Competent substantial record evidence supports this finding of fact. (Mcl aurin, Tr. Vol. 11, pp. 202-226; Joint Ex. 9). Accordingly, DTP's exception to paragraph 79 is denied.

Exception to paragraph 80 - Competent substantial record evidence supports this finding of fact. (Bello, Tr. Vol. V, pp. 690-693). Accordingly, DTP's exception to paragraph 80 is denied.

Exception to paragraph 81 - Competent substantial record evidence supports this finding of fact. (Maier, Tr. Vol. V, pp. 804-806; Joint Ex. 12). Accordingly, DTP's exception to paragraph 81 is denied.

Exception to paragraph 82 - DTP takes exception to the ALJ's description of Mr. Maynard's background and lack of experience and level of familiarity with the projects at issue in these proceedings. The ALJ's findings are supported by competent substantial record evidence. (Joint Ex. 65, Bates 02235-02236, 02238-02244, 02248- 02252 and 02331-02352, Maynard). Notably, DTP did not take exception to paragraph 84,4 where the ALJ ultimately found that Mr. Maynard's testimony was unpersuasive

4 A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward Cty., 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); see

based on the underlying findings in paragraph 82. The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency , absent a complete lack of any competent substantial evidence of record supporting the decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So . 3d 1079, 1088 (Fla. 2d DCA 2009). Accordingly, this exception is denied.

Exception to paragraph 83 - DTP takes exception to paragraph 83, where the ALJ found:

83. The undersigned finds persuasive the testimony of Mathews, Mcl aurin, Bello, and Maier that the 2 fps flow rate is not a mandatory standard applicable to the projects authorized by the Permits at Issue, and that in areas of the system in which a 2 fps flow rate will not be achieved, requiring more frequent cleaning to ensure that the pipes do not become plugged is adequate to meet DEP's rule requirements.

However, the rulings on the Exceptions to paragraphs 72-82, above, show that the ALJ's findings are supported by competent substantial record evidence. The specified rulings are incorporatedherein, and accordingly this exception is denied.

Exception to paragraph 86 - DTP takes exception to paragraph 86, where the ALJ ultimately determined that:

86. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, will not experience wastewater backups or releases into the environment as a result of inadequate scouring velocity. FKAA has demonstrated that the systems, in compliance with DEP rules and applicable technical manual standards and requirements, will have wastewater flow of sufficient velocity to scour and prevent sedimentation

also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003).

in the piping, and that in the few remote areas where the velocity may be lower than recommended, more frequent cleaning of the piping will prevent sedimentation.

However, the rulings on the Exceptions to paragraphs 72-82, above, show that the ALJ's findings and ultimate determinations are supported by competent substantial record evidence. The specified rulings are incorporated herein, and accordingly this exception is denied.

Explosion Potential of Pumps

DTP takes exception to paragraphs 128-135, where the ALJ ultimately found that FKAA proved that using E/One grinder pumps in the wastewater collections systems did

not present a substantial fire or explosion risk and complies with the DEP's rules and applicable technical manuals. (RO ,r 13 5). DTP essentially objects to the ALJ's judgments regarding witness credibility and persuasive testimony . DTP also seeks to

have the Department make new or additional factual findings that were not made by the ALJ. The ALJ's findings must be reviewed based on the standards of review discussed above. The rulings below show that the findings in paragraphs 128-135 are supported by competent substantial record evidence.

Exception to paragraph 128 - DTP's exception states that paragraph 128 is a "[c]orrect statement," regarding the testimony of DTP's expert witness - Mr. Boismenu. The exception then seems to criticize a portion of Mr. Boismenu's testimony as describedby the ALJ in paragraph 128. Either way, paragraph 128 is supported by competent substantial record evidence. (Joint Ex. 67, Bates at 02551 and 02569-02570, Boismenu). Therefore, this exception is denied.

Exceptions to paragraphs 129 and 130 - DTP argues that paragraphs 129 and 130 are "[p]artially correct." DTP essentially objects to the ALJ's reliance on the testimony of FKAA's expert witness - Rene Mathews. The ALJ's findings are supported by competent substantial record evidence including the expert's testimony. (Mathews, Tr. Vol. IV, pp. 523-532; Joint Exs. 25, 33, and 34). The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting the decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009). Therefore, these exceptions are denied.

Exception to paragraph 131 - OTP takes exception to the ALJ's description of Mr. Boismenu's lack of familiarity with the type of wastewater projects at issue in these proceedings. The ALJ's findings are supported by competent substantial record evidence.(Joint Ex. 67, Bates 02545, 02592-02593, 02551-02558, and 02561-02582,

Boismenu). The ALJ's decision to accept the testimony of one expert witness over that

of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting the decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009). Accordingly, this exception is denied.

Exception to paragraph 132 - DTP again objects to the ALJ's reliance on the testimony of FKAA's expert witness - Rene Mathews. The ALJ's findings are supported by competent substantial record evidence including the expert's testimony. (Mathews,

Tr. Vol. IV, pp. 523-532; Joint Exs. 25, 33, and 34). The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting the decision. Id. Therefore, this exception is denied.

Exception to paragraph 133 - DTP again objects to the ALJ's conclusion that the Ten States Standards do not mandatorily apply to this alternative system. The rulings on the Exception to paragraph 73 above is incorporated herein. Competen t substantial record evidence supports the ALJ's findings in paragraph 133. (Mcl aurin, Tr. Vol. 11, pp . 264-268, 339-340; Mathews, Tr. Vol. IV, p. 618; Bello, Tr. Vol. V, pp. 736- 738). Therefore, this exception is denied.

Exception to paragraph 134 - DTP takes exception to paragraph 134, where the ALJ determined that the "Petitioners did not demonstrate that the residential and neighborhood/area lift station grinder pumps violate DEP rules and applicable technical manuals, the NEC, [National Electrical Code) or the NFPA Standards [National Fire Protection Association] regarding potential for fire and explosion." The ALJ's determination as to whether a party met its burden of proof is a factual finding based on the record evidence. See§ 120.569(2)(p)and 120.57(1)U), Fla . Stat. (2014). The rulings on the Exceptions to paragraphs 128-131 above are incorporated herein and show that the ALJ's finding is supported by competent substantial evidence. Therefore, this exception is denied.

Exception to paragraph 135 - DTP takes exception to paragraph 135, where the ALJ ultimately determined that:

135. FKAA demonstrated , by a preponderance of the competent substantial evidence, that using E/One grinder pumps in the wastewater collection systems does not present a substantial fire or explosion risk and does not violate DEP rules or applicable technical manual standards and requirements.

However, the rulings on the Exceptions to paragraphs 128-134, above, show that the ALJ's findings and ultimate determinations are supported by competent substantial record evidence. The specified rulings are incorporated herein and therefore, this exception is denied.

System Pressure Capacity

DTP takes exception to paragraphs 141-151 and 153-154, where the ALJ ultimately found that FKAA proved that the E/One grinder pumps used in the systems design will function as anticipated, will not exert pressures that exceed the systems'

piping capacity, and will not cause system piping to burst or fail. (RO ,r 154). DTP

essentially objects to the ALJ's resolution of conflicting expert testimony and judgments regarding witness credibility. DTP also seeks to have the Department make new or additional factual findings that were not made by the ALJ. The ALJ's findings must be reviewed based on the standards of review discussed above. The rulings below show that the findings in paragraphs 141-151 and 153-154 are supported by competent substantial record evidence.

Exceptions to paragraphs 141, 142, and 143 - DTP agrees with the ALJ's findings in paragraphs 141, 142, and 143. Accordingly, these exceptions are denied.

Exceptions to paragraphs 144. 145, and 146 - DTP takes exception to paragraphs 144, 145, and 146, on the basis that the findings are "[i]ncorrect conclusions" based on "incorrect testimony" and "hearsay." DTP essentially objects to

the ALJ's reliance on the testimony of FKAA's expert witnesses. The ALJ's findings in paragraphs 144, 145, and 146, are supported by competent substantial record evidence. (Mathews, Tr. Vol. IV, pp. 540-550; Fernandez, Tr. Vol. V, pp. 758-761).

DTP argues that Mr. Fernandez' testimony regarding how power restoration is handled after a massive power outage, is hearsay. However, the record does not show that any hearsay objection was made and ruled on at the hearing. (Fernandez, Tr. Vol. V, pp. 758-761). The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting the decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009). Therefore, these exceptions are denied.

Exception to paragraph 147 - DTP takes exception to paragraph 147, where the ALJ ultimately found that "it is highly unlikely, under any reasonable circumstances, that pressure generated by the grinder pumps would cause the system piping to burst." DTP argues that the ALJ's finding is an "[i]ncorrect conclusion based on misinformation." DTP essentially objects to the ALJ's reliance on the testimony of FKAA's expert witnesses. The ALJ's ultimate finding in paragraph 147 is supported by competent substantial record evidence. (Mathews, Tr. Vol. IV, pp. 540-550; Fernandez , Tr. Vol. V, pp. 758-761). Therefore, this exception is denied.

Exception to paragraph 148- DTP takes exception to paragraph 148, where the ALJ describes the Petitioners' assertion regarding inadequate pressure testing of

the piping that comprises the collection system. (RO ,r 148) . The ALJ's description is

supported by competent substantial record evidence. (See, e.g., First Amended Petition in DOAH Case No. 14-2415 at 1f 44 ; Joint Ex. 65, Bates 02301-02304, Maynard). Accordingly, this exception is denied.

Exception to paragraph 149 - DTP takes exception to paragraph 149, where the ALJ found that pressure testing of pipes take place after construction is complete for

the purpose of detecting leaks - not to determine the failure. pressure of the pipes. (RO 1f

149) . DTP objects to the ALJ's reliance on the testimony of FKAA's expert witnesses.

The ALJ's findings in paragraph 149 are supported by competent substantial record evidence. (Mathews, Tr. Vol. IV, pp. 540-550; Mcl aurin, Tr. Vol. II, pp. 308-310).

Therefore, this exception is denied.

Exception to paragraph 150 - DTP takes exception to the ALJ's description of Dr. Hovstadius' lack of experience familiarity with certain details and design features of the CRWS. The ALJ's findings are supported by competent substantial record evidence. (Joint Ex. 66, Bates 2444-2456 and 02492, Hovstadius). Notably, DTP did not take exception to paragraph 152,5 where the ALJ ultimately found that Dr.

Hovstadius' and Mr. Maynard's testimony was unpersuasive on the issue of system pressure capacity. The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting the decision. See, e.g., Peace River/Manasota Regional Water Supply

5 A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward Cty., 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003).

Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009). Therefore, this exception is denied.

Exception to paragraph 151 - DTP takes exception to paragraph 151, where the ALJ summarizes the background and experience of Rene Mathews and Al

Mclaurin. Competent substantial record evidence supports the ALJ's findings. (Mclaurin, Tr. Vol. 11, pp . 202- 212; Mathews, Tr. Vol. IV, pp. 514-520). Accordingly, this exception is denied.

Exception to paragraphs 153 and 154 - DTP takes exception to paragraph 153, where the ALJ ultimately found that the "Petitioners failed to demonstrate that the E/One grinder pumps will exert pressures exceeding the systems' piping pressure capacity, causing system piping bursting or failure." DTP also takes exception to paragraph 154, where the AlJ ultimately found that FKAA proved that the E/One grinder pumps "will function as anticipated, will not exert pressures that exceed the systems' piping capacity, and will not cause system piping to burst or fail."

Paragraphs 153 and 154 are supported by competent substantial record evidence. (Mclaurin, Tr. Vol. 11, pp . 308-310; Mathews, Tr. Vol. IV, pp. 540-550; Fernandez, Tr. Vol. V, pp. Fernandez; Joint Ex. 65, Bates 02301-02304, Maynard). Accordingly , these exceptions are denied.

Wastewater Service during Power Outage

DTP takes exception to paragraphs 155-165, where the ALJ ultimately found that FKAA proved that uninterrupted sewer service will be provided, including during extended power outages and other emergency circumstances, as required by DEP

rules. (RO ,r 16 5). DTP essentially objects to the ALJ's resolution of conflicting expert

testimony and judgments regarding witness credibility. DTP also seeks to have the Department make new or additional factual findings that were not made by the ALJ. The Al J's findings must be reviewed based on the standards of review discussed above. The rulings below show that the findings in paragraphs 155-165 are supported by competent substantial record evidence.

Exception to paragraph 155 - DTP agrees with the ALJ's findings in paragraph

155. Accordingly, this exception is denied.

Exception to paragraph 156 - DTP takes exception to paragraph 156, where the Al J found that the "CRWS design and operating protocol contain measures specifically directed to [power outage] issues." Competent substantial record evidence supports the ALJ's finding. (Walker, Tr. Vol. V, pp. 785-789; Mcl aurin, Tr. Vol. II, pp. 218-220; Mathews, Tr. Vol. IV, pp. 603-604, 620-636; Fernandez, Tr. Vol. V, pp. 759- 765; Maier, Tr. Vol. V, pp. 798-802 , 806-807; Joint Ex. 29). Therefore, this exception is denied.

Exception to paragraph 157 - DTP takes exception to paragraph 157, where the ALJ found that "the neighborhood/area lift station design includes a quick connect riser pipe that will be used to periodically flush the systems and can be used in emergencies to pump water out of the lift stations into the force mains and to the treatment plant, thus preventinglift station overflow." Competent substantial record evidence supports the ALJ's findings. (Mcl aurin, Tr. Vol. II, pp. 272-275, 344-345; Mathews, Tr. Vol. IV, pp. 535-540, 631-632; Joint Exhibit 29). Therefore, this exception is denied.

Exception to paragraph 158 - DTP takes exception to paragraph 158 , where the AlJ found that "during a power outage, FKAA can pump out residential grinder pump wet wells using mobile generators, pump trucks, or vacuum trucks." Competent substantial record evidence supports paragraph 158. (Walker, Tr. Vol. I, pp. 138-139, 155-156, 171-173 and Tr. Vol. V, pp. 786-788; Mcl aurin, Tr. Vol. II, pp. 273-276 and 310-319; Mathews, Tr. Vol. IV, p. 595; Fernandez, Tr. Vol. V, pp. 759-760 and 777- 778). Accordingly, this exception is denied.

Exceptions to paragraphs 159, 160, and 161 - DTP takes exception to paragraphs 159, 160, and 161, wheretheAlJ made findings regarding FKAA's operating contingencies to address power outages during emergency situations. Competent substantial record evidence supports these findings of fact. (Walker, Tr. Vol. I, pp. 138-139, 155-156, 171-173 and Tr. Vol. V, pp. 786-788; Mcl aurin, Tr. Vol. II, pp. 273-276 and 310-319; Mathews, Tr. Vol. IV, p. 595; Fernandez, Tr. Vol. V, pp. 759-760 and 777-778). Accordingly , these exceptions are denied.

Exception to paragraph 162 - DTP takes exception to paragraph 162, where the AlJ found that Grinder Pump Guardian monitoring system "will enable pump malfunctions to be immediately detected and rapidly addressed by maintenance personnel, significantly decreasing the likelihood of wastewater spill or release into homes or the environment." Competent substantial record evidence supports the ALJ's findings in paragraph 162. (Wallace, Tr. Vol. I, p. 172; Mcl aurin, Tr. Vol. 11, pp . 270 ,

300-301 ; Mathews, Tr. Vol. IV, pp. 556 and 604-605. Accordingly, this exception is denied.

Exceptions to paragraph 163 - DTP takes exception to paragraph 163, where the ALJ found that FKAA had already started to establish specific procedures and protocol for addressing collections systems operation, though not required to do so until it seeks certification from DEP to place the CRWS into operation. Competent substantial record evidence supports the ALJ's findings in paragraph 163. (Walker , Tr. Vol. I, pp. 138-139, 155-156, 171-173 and Tr. Vol. V, pp. 786-788; Mclaurin, Tr. Vol. 11,

pp. 273-276 and 310-319; Mathews, Tr. Vol. IV, p. 595; Fernandez, Tr. Vol. V, pp. 759- 760 and 777-778). Therefore, this exception is denied.

Exceptions to paragraphs 164 and 165 - DTP takes exception to paragraph 164, where the ALJ ultimately found that the "Petitioners did not demonstrate that sewer service will be interrupted in violation of DEP rules." DTP also takes exception to paragraph 165, where the ALJ ultimately concluded that FKAA proved "that uninterrupted sewer service will be provided, including during extended power outages and other emergency circumstances, as required by DEP rules."

Competent substantial record evidence supports these ultimate findings of the ALJ. (Walker , Tr. Vol. I, pp. 138-139, 155-156, 171-173 and Tr. Vol. V, pp. 786-788;

Mcl aurin, Tr. Vol. 11, pp. 273-276 and 310-319; Mathews, Tr. Vol. IV, p. 595; Fernandez, Tr. Vol. V, pp. 759-760 and 777-778). Accordingly, these exceptions are denied.

CONCLUSION

Having reviewed the matters of record and being otherwise duly advised, It is therefore ORDERED that:

,A The Recommended Order (Exhibit A) is adopted in its entirety and is incorporated by reference herein.

8. Permit No. 295404-018-DWC/CM (Permit 18), is APPROVED;

1. Permit No. 295404-019-DWC/CM (Permit 19), is APPROVED;

   
   

2. Permit No. 295404-027-DWC/CM (Permit 27), is APPROVED;

   
   

3. Permit No. 295404-025-DWC/CM (Permit 25), is APPROVED.

JUDICIAL REVIEW

Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; 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 Final Order is filed with the clerk of the Department.

DONE AND ORDERED this / (o     of March , 2015 , in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

JO A HA ·. TEVERSON

Sec ary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

CERTIFICATE OF SERVICE

I CERTIFY that a copy of the foregoing Final Order was sent by electronic mail

to:

Robert N. Hartsell, Esquire Sarah M. Hayter, Esquire

1600 S. Federal Highway, Suite 921 Pompano Beach, FL 33062 robert@hartsell-law.com sarah@hartsell-law.com

Lee R. Rohe, Esquire Lee Robert Rohe, P.A.

25000 Overseas Highway, Suite 2 Summerland Key, FL 33042 lrrlaw@bellsouth.net

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

by U.S. Postal Service to: Jamie Colee

Little Palm Island Associates, Ltd. 600 6th Street South

Kirland, WA 98033-6716 this of March, 2015.

Fred Springer, Esquire Michael L. Elkins, Esquire Bryant Miller Olive, P.A. SunTrust International Center One S.E. 3rd Ave., Suite 2200 Miami, FL 33131 fspringer@bmolaw.com melkins@bmolaw.com

Robert T. Feldman, Esquire Office of General Counsel Florida Keys Aqueduct Authority 1100 Kennedy Drive

Key West, FL 33040-4021

rfeldman@fkaa.com

Sidney Bigham, Ill, Esquire

Dept. of Environmental Protection 3900 Commonwealth Blvd., MS 35

Tallahassee, FL 32399-3000 sidney.bigham@dep.state .fl.us

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

    r'IA:

                               _N_EM_ -=-F-.,,cF:._O-_L _KE S                        Administrative Law Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000 Telephone 850/245-2242

Docket for Case No: 14-002417

Orders for Case No: 14-002417