The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
Findings Of Fact Respondent is an individual who owns or operates a water system that provides piped water for human consumption to the Hardy House Diner in Washington county, Florida. The water system serves at least 35 persons daily at least 60 days out of the year. Respondent has owned or operated the water system since at least October 28, 1976. Respondent does not continually apply effective disinfectant measure to the water distributed to the customer of the Hardy House Diner, nor is Respondent's water system equipped with any disinfection equipment. Respondent's water system has a daily flow greater than 2,500 gallons per day, but less than 100,000 gallons per day. The operation, maintenance and supervision of the water system is not performed by a person who has passed an examination that entitles such a person to be a certified operator. Neither the Department nor the Washington County, Florida Health Department has received from Respondent reports which contained information about the operation and maintenance of the Respondent's water system. The water system's lack of disinfectant equipment and the absence of a certified operator for the system and Respondent's failure to file operation reports have existed continuously since "October, 1976. Representatives of the Department conducted a public water systems inspection of Respondent's water system on October 26, 1976. At that time, the system was found to be unsatisfactory in several categories, including general plant condition, existence of safety hazards, lack of chlorination, failure to submit regular reports, failure to submit monthly bacteriological samples, failure to perform chemical analysis of drinking water and failure to install a raw water tap between the pump and point of chlorination. A second inspection was performed on April 7, 1977, in which it was determined that Respondent still had not installed a chlorinations system, had failed to submit monthly operating reports had failed to employ a certified operator, had failed to submit monthly bacteriological samples, and had failed to perform annual chemical analysis of water disposed from the system. On December 7, 1977, a representative of the Department whose job responsibilities included inspecting public water systems was refused permission to enter and inspect the water system serving the Hardy house diner and its customer. The Department representative was refused entry after he had identified himself and made his purpose known to Respondent. The Department has incurred expenses of $117.58, including personnel time and travel expense, in the course of investigating Respondent's alleged violations.
Recommendation RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, finding the Respondent to be in violation of the above-referenced statutes and regulations, and requiring Respondent to pay the state its reasonable costs and expenses, in the amount of $117.58 incurred in investigating and prosecuting this administrative proceeding. RECOMMENDED this 26th day of February, 1979, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 2230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1979. COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Eugene Hardy 1005 Highway 90 West Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 78-1209 DER Case No. WC-10-78 EUGENE HARDY, Respondent. /
The Issue Whether the Petitioner's applications for (1) a general permit to operate a used oil refining facility and 2) an operation permit to operate an industrial waste water treatment system, at the same facility, in conjunction with the used oil refining operation, should be granted.
Findings Of Fact Sometime in the 1950's George Davis, the owner and operator of Davis Refining Corporation, became interested in used oil recycling and refining. From that time on, Mr. Davis worked towards his dream of operating a used oil recycling and refining center by gradually accumulating the land and equipment to operate such a facility. In order to further his goal, Mr. Davis acquired property located at 2606 Springhill Road in Tallahassee, Florida. Eventually, Mr. Davis applied for a permit to construct an industrial waste water treatment system in conjunction with a used oil refining facility on the Springhill Road property. On January 21, 1986, the Department issued a construction permit to the Petitioner to modify and construct an industrial waste water treatment system. The construction permit was subsequently extended on three different occasions. The last extension, granted May 30, 1989, extended the construction permit to its full statutory limit of five (5) years. The final expiration date of the construction permit was January 20, 1991. Petitioner was notified of the expiration date by the Department. During the time of the construction permit, Mr. Davis constructed an industrial waste water treatment system and an oil recycling and refining facility on his property on Springhill Road. Less than sixty days prior to expiration of the construction permit for the industrial waste water treatment system, the Petitioner submitted an application for renewal of an operation permit. The Department received the application on January 10, 1991. Unfortunately, the application for renewal of an operation permit was not the correct form since the Petitioner never had an operation permit. The application was rejected by the Department because it was the incorrect form and did not have the required permit fee. In March of 1991, after the expiration of Petitioner's industrial waste water treatment construction permit, Petitioner filed the correct application for an industrial waste water treatment operation permit and submitted the required fee. The industrial waste water operation permit application was denied by the Department because it was incomplete and lacked the required reasonable assurances that the system would not be a source of pollution in violation of water quality standards or contrary to the public interest. On October 29, 1990, Petitioner submitted a Used Oil Recycling Facility General Permit Notification to the Department. By letter dated November 28, 1992, the Department timely denied use of a general permit to operate a Used Oil Recycling Facility because the application lacked the requisite reasonable assurances that the proposed operation of the facility would not discharge, emit, or cause pollution so as to violate water quality standards or be contrary to the public interest. Even though the construction permit has expired and no additional permits have been issued by the Department the Petitioner continues to accept used oil and oily industrial waste water from outside sources for treatment. Currently, the facility consists of a used oil refining plant, industrial waste water treatment system, and separator (coalescer) system and water treatment pond. Munson Slough separates the facility into two parts. The used oil refining portion of the facility together with the industrial waste water treatment system input and separator (coalescer) system are located on the east side of Munson Slough. The refining portion of the facility is immediately adjacent to the slough. The industrial waste water treatment pond is located on the west side of Munson Slough. The industrial waste water treatment pond is likewise immediately adjacent to the slough. The industrial waste water treatment system is an integral part of the used oil recycling operation. Used oil and oily waste water are accepted from outside sources and are put through the separator system to separate the oil from the water and other contaminants. The separated oil is then re-refined at the refinery. The remaining industrial wastewater contains oily materials, solids, and volatiles. The separated water is pumped through a pipe underneath Munson Slough to the industrial waste water treatment pond. Additionally, the surface and stormwater runoff from the refining facility on the east side of Munson Slough also goes through the same industrial waste water treatment system and is pumped into the waste water treatment pond. Runoff from the refinery contains various pollutants as well as pollutants from any spills occurring at the refinery. Both the general permit for the refining facility and the operation permit for the industrial waste water treatment system depend on the ability of the waste water treatment system and pond to adequately handle the waste water and runoff water from the refining facility without permitting leaks of the wastewater into the environment. The industrial waste water treatment pond is lined with soil cement. Soil-cement is not a common material used in the construction of industrial waste water pond liners and the Department's personnel is not familiar with the material and its ability to function as an adequate liner for an industrial waste water pond. The soil-cement is a sand-cement mix (10 percent). The sand-cement was intended to be layered to a depth of six inches on the sides and bottom of the pond. The evidence showed that portions of the liner achieve a six inch depth. However, the evidence did not show that the soil-cement's depth is consistent throughout the liner since no as-built plans or certification for the facility were submitted to the Department and the engineer for the project at the time of its construction was not called to testify on whether the pond was constructed according to the construction plans. The sand cement liner overlays a high clay content pond bottom. The estimated (not established) permeability rate of the sand-cement pond liner is 1/100,000,000 centimeters per second and is within the Department's parameters for the adequacy of a lining material if that material is shown to actually have such a permeability rate by the time the operation permit is applied for. No materials data was submitted to the Department which demonstrated that the sand- cement liner of the pond actually achieved the permeability rate of 1/100,000,000 centimeters per second or the deterioration rate of such a liner. Likewise, no expert witness was called to establish such facts. The small amount of information given the Department on the sand-cement liner in Petitioner's application for its construction permit for the facility is inadequate to establish the actual performance of the sand-cement liner for purposes of the operation permit. Water from the industrial waste water treatment pond is discharged to the City of Tallahassee's waste water treatment system. The City of Tallahassee requires the industrial waste water treatment pond water to be tested for water quality prior to discharge to the City's waste water treatment system. The City requires that the waste water pond be aerated for approximately four (4) hours before discharge to the City waste water treatment system. One function of the aeration is to "blow off" the volatile contaminants from a used oil refining operation which might be present in the ponds water prior to aeration. However, the results of one water quality test indicated the presence of volatile substances and nonvolatile substances consistent with petroleum product contamination. Unfortunately, the results of only one water quality test were presented at the hearing. No conclusions either for or against the Petitioner can be drawn from the results of one testing period. Therefore, such test results cannot be used to affirmatively establish reasonable assurances that the pond is not leaking. In an unprecedented effort to aid the Petitioner in getting approval of his applications, the Department agreed to accept Petitioner's submittals and assertions regarding the integrity of the pond's liner as reasonable assurance if several soil borings and their subsequent analyses did not reveal any indication of contamination from the pond to soil or ground water. One soil boring was obtained by Dr. Nayak and six soil borings were obtained jointly by Dr. Nayak and the Department from locations around the industrial waste water treatment pond for chemical analysis. Unfortunately, chemical analysis of the soil borings revealed the presence of contaminants consistent with contamination parameters for waste oil recyclers. Therefore leakage or improper discharge from the pond could not be ruled out and it fell to the Petitioner to demonstrate that the contamination found in the soil was not the result of leaks or discharge from the pond. Petitioner points to the fact that the pond is supposedly setting on an impermeable layer of clay. However, it is not unusual for the geological features of a site such as the one upon which the treatment pond is located to vary within the limited site area. The different sites of the soil borings around the pond revealed that the substrata differed between the bore sites. The Department's geological expert testified that, based upon his observation at the site, including observing and participating in the taking of soil samples from the borings, that groundwater contamination was likely. In short, it is impossible to determine the geological composition of the entire site by the one soil boring taken by Dr. Nayak or even by the six borings performed jointly by the parties. Dr. Nayak's testimony that he is able to determine the geological features of the pond site with one boring is not credible nor is Dr. Nayak qualified to make such an assessment even if such were an acceptable scientific method for making such determinations. Therefore, the evidence failed to demonstrate that the waste water pond is sited over an impermeable layer of clay. Moreover, even if it were, then any contaminated water improperly discharging through the bottom layer of the pond would migrate along the top of the clay until it reached Munson Slough and still be a pollution problem for water quality purposes. The Petitioner has not, at any time prior to or during the hearing, obtained any environmental background of the site. Nor was any such information introduced at the hearing. The on-site observation of the taking of soil bores, visual inspection of the site, and the chemical analysis of the soil samples taken from the borings are consistent with petroleum contamination resulting from the industrial waste water pond. There are procedures and courses of action which the Petitioner can pursue to address the apparent contamination problems and to demonstrate the reasonable assurances necessary to qualify for the required Department permit to operate the used oil recycling facility. The Department has made many suggestions to the Petitioner as to various methodologies that the Petitioner might employ in order to endeavor to provide reasonable assurances that the waste water treatment pond does not leak. These suggestions include emptying the pond and examining the liner, performing a materials balance calculation, or performing more soil borings sampling and testing, together with assembling additional hydrological data. However, other than chemical analysis of the soil borings, the Petitioner has not opted to pursue any suggested procedure for obtaining the desired permit and did not submit sufficient competent, substantial evidence of any credible or scientifically reasonable alternative explanations for the presence of indicator chemicals in the soil borings. In short, The Petitioner has not submitted sufficient evidence nor provided any reasonable assurance that the operation of the used oil recycling facility will not discharge, emit or cause pollution. The Petitioner also has not provided reasonable assurance that the operation of the used oil recycling facility will not violate water quality standards or be contrary to the public interest. Similarly, there was insufficient evidence and no reasonable assurance submitted or offered by the Petitioner that the industrial waste water treatment system could be operated without violating water quality standards or being contrary to the public interest. Therefore Petitioner is not entitled to either a general permit for a used oil recycling facility or an operation permit for the industrial waste water treatment system used in conjunction with the used oil facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that a Final Order be entered denying the Petitioner both the general permit to operate a used oil recycling facility and the operation permit for the industrial waste water treatment system without prejudice to reapplying for such permits. DONE and ENTERED this 9th day of September, 1993, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5140 and 92-1560 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, and 29 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 11, 15, 27 and 30 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact were not shown by the evidence. Paragraphs 1 and 2 of the Petitioner's Proposed Findings of Fact were introductory and did not contain any factual matters. The facts contained in the 1st, 2nd and 7th sentences of paragraph 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in the 4th, 5th, 6th and 7th sentences of paragraph 5 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence. The facts contained in paragraphs 3, 6, 7, 10, 12 and 13 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the 3rd and 5th sentences of paragraph 8 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in the last sentence of paragraph 11 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dr. S. K. Nayak 3512 Shirley Drive Tallahassee, Florida 32301 Candi Culbreath, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is liable to Petitioner Department of Environmental Protection (Department) for penalties and costs for the violations alleged in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."3 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting the water quality of the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the St. Lucie River area near Laniger's WWTP is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2, at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. The Department notified Laniger that its WWTP was listed as a threat to the water quality of the lagoon system soon after the 1991 report was issued. The Department's 1991 report concluded that the solution for package plants threats was to replace them with centralized sewage collection and treatment facilities. To date, over 90 of the package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter [sic] 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." Most of the parties' evidence and argument was directed to the following requirements of the administrative order: Beacon 21 WWTP shall connect to the centralized wastewater collection and treatment within 150 days of its availability and properly abandoned facility [sic] or provide reasonable assurance in accordance with Chapter 62-620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System and will not cause pollution in contravention of chapter 403, F.S. and Chapter 62-610.850 of the Florida Administrative Code. * * * (3) Beacon 21 WWTP shall provide this office with semi annual reports outlining progress toward compliance with the time frames specified in paragraph 1 of this section, beginning on the issuance date of permit number FLA013879-002-DW3P. The administrative order contained a "Notice of Rights" which informed Laniger of the procedures that had to be followed to challenge the administrative order. Laniger did not challenge the administrative order. As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. The force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad. Correspondence Regarding Compliance Issues On August 21, 2001, following an inspection of the Laniger WWTP, the Department sent Laniger a letter that identified some deficiencies, one of which was Laniger's failure to submit the semi-annual progress reports required by the administrative order. Reginald Burge, president of Laniger and owner of the WWTP, responded by letter to William Thiel of the Department, stating that, "All reports were sent to the West Palm Beach office. Copies are attached." Mr. Thiel testified that the progress reports were not attached to Laniger's letter and he informed Laniger that the reports were not attached. Mr. Burge testified that he subsequently hand-delivered the reports. At the hearing, it was disclosed that Laniger believed its semi-annual groundwater monitoring reports satisfied the requirement for progress reports and it was the monitoring reports that Mr. Burge was referring to in his correspondence and which he hand-delivered to the Department. Laniger's position in this regard, however, was not made clear in its correspondence to the Department and the Department apparently never understood Laniger's position until after issuance of the NOV. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, the Department received a response from Laniger's attorney, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. It was also stated in the letter from Laniger's attorney that "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] Order."4 On May 29, 2003, the Department replied, pointing out that the administrative order had found that reasonable assurance was not provided at the time of the issuance of the permit in 1999, and Laniger had made no "improvements or upgrades to the facility." The Department also reiterated that the progress reports had not been submitted. On September 29, 2003, the Department issued a formal Warning Letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The progress reports were not mentioned in the Warning Letter. The Department took no further formal action until it issued the NOV in August 2005. Count I: Failure to Timely File for Permit Renewal and Operating Without a Permit Count I of the NOV alleges that Laniger failed to submit its permit renewal application at least 180 days prior to the expiration of the 1999 permit, failed to obtain renewal of its permit, and is operating the WWTP without a valid permit. The date that was 180 days before the expiration of the 1999 permit was on or about February 27, 2004. Laniger did not submit its permit renewal application until February 15, 2005. In an "enforcement meeting" between Laniger and the Department following the issuance of the warning letter in September 2003, the Department told Laniger that it would not renew Laniger's WWTP permit. It was not established in the record whether this enforcement meeting took place before or after February 27, 2004. When Laniger filed its permit renewal application in February 2005, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger requested that the Department to act on the permit application, and the Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." Laniger filed a petition challenging the permit denial and that petition is the subject of DOAH Case 05-1599, which was consolidated for hearing with this enforcement case. Laniger's permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Count II: Failure to Submit Progress Reports Count II of the NOV alleges that Laniger failed to comply with the requirement of the administrative order to provide the Department with semi-annual reports of Laniger's progress toward connecting to a centralized sewage collection and treatment facility or providing reasonable assurances that continued operation of the WWTP would not be a threat to the water quality of the lagoon system. Laniger maintains that its groundwater monitoring reports satisfied the requirement for the semi-annual progress reports because they showed that the WWTP was meeting applicable water quality standards. The requirement for groundwater monitoring reports was set forth in a separate section of Laniger's permit from the requirement to provide the semi-annual progress reports. The monitoring reports were for the purpose of demonstrating whether the WWTP was violating drinking water quality standards in the groundwater beneath the WWTP site. They served a different purpose than the progress reports, which were to describe steps taken by Laniger to connect to a centralized sewage collection and treatment facility. Laniger's submittal of the groundwater monitoring reports did not satisfy the requirement for submitting semi-annual progress reports. There was testimony presented by the Department to suggest that it believed the semi-annual progress reports were also applicable to Laniger's demonstration of reasonable assurances that the WWTP was not a threat to the water quality of the lagoon system. However, the progress reports were for the express purpose of "outlining progress toward compliance with the time frames specified in paragraph 1." (emphasis added) The only time frame mentioned in paragraph 1 of the administrative order is connection to an available centralized wastewater collection and treatment facility "within 150 days of its availability." There is no reasonable construction of the wording of this condition that would require Laniger to submit semi-annual progress reports related to reasonable assurances that the WWTP is not a threat to the water quality of the lagoon system. Count III: Department Costs In Count III of the NOV, the Department demands $1,000.00 for its reasonable costs incurred in this case. Laniger did not dispute the Department's costs.
The Issue Whether Okaloosa County has provided reasonable assurances that its proposed sewage treatment plant and an associated reclaimed water reuse system will not cause pollution significantly degrading the waters of the unnamed stream on the project site and/or the Santa Rosa Sound and that therefore the County's application for a permit to construct such facilities should be granted on the basis of assurances of compliance with applicable rule and statutory criteria.
Findings Of Fact On October 16, 1987, Respondent, Okaloosa County, submitted an application to Respondent, Department of Environmental Regulation, to construct a wastewater treatment plant and related reclaimed water reuse facilities on a site located in southwestern Okaloosa County. The Petitioner is an individual citizen residing in Okaloosa County, Florida. He is the owner of real property which adjoins the northern boundary of the proposed project site. Mr. Ward has used this property as his principal residence for approximately 8 years. The proposed project site is located in southwest Okaloosa County contiguous to the western boundary of the County. The site comprises approximately 45 acres of land bounded on the west by Rosewood Drive and on the south by State Highway 98. The areas to the north and east are residential construction. The site is currently a densely wooded area vegetated with a variety of flora indigenous to the area. The site is essentially bisected by a small fresh water stream system which enters the site at the northwestern corner and runs diagonally to the southeastern corner where it flows through a series of culverts under State Highway 98. The stream system constitutes waters of the state subject to the Department's regulatory jurisdiction. In addition, there is an isolated wetland area of variable size in the northwestern section of the project site. The wetland area is not subject to the Department's regulatory authority. The stream system mentioned above intersects with another larger stream approximately 1000 feet southeast of the project site. These combined streams then meander into a tidal basin which empties into the Santa Rosa Sound approximately 2500 feet south of the project site. The Santa Rosa Sound has been designated as Class II waters of the state. The unnamed stream system on site, as well as the larger stream that it joins south of the site, are designated as Class III waters of the State. Southern Okaloosa County occupies a region of moderate elevation (0-70 feet above sea level) extending along a strip 10 or 15 miles wide along the coast of the Gulf of Mexico. Soils in this area are predominately fine sands low in organic matter. When dry, most of the soils have rapid internal drainage characteristics. The Plant The proposed plant is intended to treat sewage generated by the County's Western subregional service area. Initially, it will treat the flow currently handled by approximately 1400 septic tank systems and 9 package treatment plants within the area. The collection system which will transport the wastewater will be comprised of approximately 98,500 linear feet of 8 to 12 inch diameter gravity sewers. The transmission facilities to convey the raw wastewater from the new collection system will include the construction of approximately 29,400 linear feet of 4 to 10 inch diameter force main, 14 pump stations and approximately 32,100 linear feet of 8 to 12 inch diameter gravity interceptors. By the end of its first year of operation, the proposed facility is projected to receive and treat approximately 750,000 gallons per day ("GPD"). The projected flow through the wastewater facility in the year 2007 is 1,000,000 GPD. The proposed facility is best described as a 1,000,000 GPD capacity oxidation ditch treatment plant with nitrification and denitrification facilities. Reclaimed water reuse will be accomplished by a rapid infiltration basin system (RIB). Sludge from the system will be dewatered by a mechanical belt press system and disposed of at the County landfill. In order to address the question of potential odors which result from the operation of the plant, the facility was located as near the center of the property as possible in order to give as much buffer area as possible between the facility and the surrounding residential area. In addition, the design of the treatment facility incorporates a preprocess aeration tank equipped with an activated carbon airstripper system which is specifically designed to remove the odor from the wastewater influent. The treatment facility was also located near the center of the property in order to keep any noise resulting from the operation of the plant as far away from the surrounding area as possible. The plant utilizes noiseless gravity flow techniques and does not incorporate any blower or pump technology which usually cause a significant amount of noise in wastewater treatment plants. It is expected that the noise level from the operation of this facility would be less than the noise level generated from the traffic on State Highway 98 nearby. The plant is designed to minimize the adverse effects resulting from odors, noise, aerosol drift and lighting. The entire facility is enclosed by a fence. The facility is designed and does comply with the Florida Administrative Code requirements for protection from flooding. The proposed site is at a higher elevation than the established 100 year flood elevation for the area. The plant is designed so that every operational component of the plant has a backup system. The plant is equipped with an emergency generator capable of supplying sufficient power to operate the plant in the event of a power failure. The design of the plant complies with the standards provided by the Environmental Protection Agency for mechanical reliability. The information submitted for the Department's review in relation to the County's construction permit application addressed all the information required in Rule 17-6.037(10), Florida Administrative Code. The proposed plant facility is designed to leave a buffer zone approximately 200 feet wide between the reclaimed water reuse system and the stream system located on the project site. The construction plan prohibits any construction activities and/or clearing within the buffer area. This buffer area contains all the jurisdictional areas which are related to the stream system. The Treatment Process The waste treatment process proposed for this facility consists of secondary treatment, basic disinfection and pH control as defined in Rule 17- 6.060(1)(a)3, (c) and (d). The basic treatment process technology used in the proposed plant is described as a carousel activated sludge process. This process is a superior method of wastewater treatment because of its inherent stability, its reaction to shock and toxic loadings and the degree of process control that is available to the operator. The effluent limitations that the Department has established for this facility require that the effluent, after disinfection, contain not more than 20 mg/1 Biological Oxygen Demand ("BOD") and 20 mg/1 Total Suspended Solids ("TSS"). In addition, effluent standards require a basic level of disinfection which shall result in not more than 200 fecal coliform values per 100 ml of effluent sample. The chlorine residual in recovered water shall be maintained at 0.5 mg/1 minimum, after 15 minutes contact time at peak flow. The pH level in the effluent must be maintained in a range between 6.0 Q and 8.5. The County will be required to retain a Class B operator certified under the provisions of Chapter 17-16, Florida Administrative Code for day-to- day maintenance and operation of the treatment facilities. In addition, the facility must be staffed for a minimum of 16 hours per day, seven days a week by at least a Class C operator certified under the same provisions. A Class B operator shall be on call during all periods that the plant is unattended. At a minimum, the facility must produce reclaimed water which complies with water quality standards provided in Rule 17- 3.404, Florida Administrative Code, as it interacts with groundwater in the established zone of discharge ("ZOD"). The estimated ZOD is an area defined by the boundaries of the facility. These standards are essentially equal to drinking water standards provided in Rule 17-22, Florida Administrative Code. Because the soils under the site are rapid sands, the Department does not rely on them to significantly reduce total nitrogen in the reclaimed water through interaction with the soils and the groundwater table under the rapid infiltration basins. As a result, the proposed facility is limited to a Total Nitrogen limitation of 7 mg/1. This limitation is significantly less than the Department's rapid rate land application treatment standard for Total Nitrogen which is 12 mg/1 in the effluent, with no more than 10 mg/1 in the ground. The proposed plant is capable of producing the 7 mg/1 level under all flow conditions. The Rabid Infiltration Basins In conjunction with the County's application for a construction permit for the wastewater treatment plant itself, the County submitted an application for a reclaimed water reuse system construction permit for a system designed to handle the maximum plant discharge of 1,000,000 gallons of reclaimed water per day. The system is composed of a series of five rapid infiltration basins (RIB's) or percolation ponds designed to receive the daily reclaimed water loads from the operation of the plant and allow the water to percolate into the groundwater beneath the project site. The ponds are proposed to be used so that not all the ponds are working at the same time. On any given day, there will be 3 ponds receiving effluent from the plant and 2 ponds receiving no effluent. The proposed system of rapid infiltration basins is the best approach to effluent disposal on this particular site in consideration of a variety of site specific criteria. While the Department's adopted guidance standards for percolation pond location specifies that areas with average depths to the groundwater table of 10 feet or more are desirable, the guidance document provides that areas with lesser depths may be acceptable. Computer models using highest projected groundwater levels and highest reasonably projected mounding effects related to the effluent disposal system indicate that while at times there may be less than 3 feet of vertical separation between the top of the groundwater mounds beneath any one of the percolation ponds and the floor of those ponds, it is not expected that the groundwater level will intersect the bottoms of the infiltration basin and that an acceptable margin will be maintained. Initially, there was some dispute among Department staff concerning the suitability of the project site to handle the hydraulic loading rates proposed for the facility's pond system. After a significant amount of analysis of the relevant factors affecting site suitability in this regard and after Department staff managed to get the computer program which analyzes this data working properly, the relevant data indicates that the site is suitable for the proposed wastewater treatment plant as designed. Surface and Ground Water Impact The proposed facility is designed to meet applicable Department water quality standards necessary to prevent unacceptable degradation of the water quality in both the unnamed stream system on site and the Santa Rosa Sound. At the Department's request, the County had an independent study performed to assure that the operation of the facility would not have the effect of degrading nearby surface waters. This study, done by Larry Jacobs and Associates, supports the County consultant's projections that, under worst case conditions (highest observed groundwater levels plus maximum effluent loading), approximately 32,000 additional gallons per day of groundwater may enter the stream system as a result of operation of the RIB system. These studies were conducted to address the Department's concern about the potential for increased nitrogen loading into both the stream system and the Santa Rosa Sound as a result of increased groundwater contributions to the stream system on site. The effluent disposal study submitted by the County as part of its application concludes that, discounting any possible reduction of Total Nitrogen content of the effluent as it travels through the ground before its discharged into the stream system, the Total Nitrogen concentration of the groundwater predicted to reach the stream should be diluted at the lowest observed flow volumes in the system to a concentration of less than 1 mg/1 when it reaches the confluence of the two streams approximately 1,000 feet south of the project site. The projection is an improvement in surface water conditions when compared with currently observed average concentrations of Total Nitrogen in the stream system and Santa Rosa Sound of 1.24 mg/1. The performance of existing package plants in the area is generally poor. In fact, one treatment plant was ordered to close, forcing the relocation of residents in its service area. Another plant has continuing groundwater nitrate violations. In addition, the evidence shows that the performance of the septic tank systems in the area is not acceptable to the Environmental Protection Agency. The majority of the population is served by septic systems that fail under high groundwater conditions. The Director of the Okaloosa County Health Department has certified that 60% of the residents in the County West Service Area have failed septic tanks and that the remaining 40% have septic tanks in imminent danger of failing. Three of the eight existing treatment plants are under either Court or Consent orders to cease operations. The United States Environmental Protection Agency has found that the County West area has an immediate need to provide collection, transmission, and treatment facilities to protect surface and groundwaters and eliminate a public hazard. Existing concentration of Total Nitrogen in Santa Rosa Sound and the waterways on and adjacent to the site are attributed to discharge of inadequately treated wastewater from existing septic tanks, existing wastewater treatment plants and stormwater runoff in the area. It is unlikely that the nitrogen concentration in the Santa Rosa Sound will increase as a result of the operation of the proposed facility since whatever wastewater treated at the facility will be eliminated from discharging into the affected waterbodies from other, less efficient treatment facilities. The proposed facility design incorporates a total of seventeen monitoring wells or stations on and around the site. Two wells will monitor background groundwater quality upgradient from the percolation pond system. Twelve wells will monitor groundwater quality down gradient from the percolation pond system as it leaves the established zone of discharge. Two more stations will monitor surface water quality in the on-site system above and below the site. In addition, there is one intermediate monitoring well within the zone of discharge. Samples from these wells will be used to provide quarterly data reports to the Department indicating status of the following parameters in the ground water; water level, pH, BODs, Fecal Coliform, Total Nitrogen, Nitrate/Nitrate and Chloride. The surface water monitoring will provide annual data reports to the Department on the following parameters: Chemical/Physical - Total Nitrogen, Nitrate/Nitrate, Total Phosphorus, Dissolved Oxygen, Temperature and pH Biological Assessment - macroinvertebrate population per species, species diversity per square meter. These data reports will be submitted regularly to the Department in conjunction with operational monitoring data from the treatment plant to allow assessment of the impact of the plant operation on the environment and compliance with permit conditions. Clearly the County has provided reasonable assurances that the proposed plant and related facilities will not cause pollution significantly degrading the waters of the State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order Granting the application of Okaloosa County to construct a wastewater treatment facility and related reclaimed water reuse system at the proposed site in southwestern Okaloosa County, Florida, and issuing permits in accordance with the conditions as set forth in the Department's Intent to Issue and draft permit dated August 1, 1988. DONE and ENTERED this 1st day of June, 1989, in Tallahassee, Florida. DIANNE CLEAVINGER 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 1st day of June, 1989. APPENDIX Petitioner's paragraph 1 of his Proposed Findings of Facts (titled Closing Statement) did not contain any factual statements. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Facts are subordinate. All the evidence contrary to the suitability of the Project site was explained by other more credible evidence. The facts contained in paragraphs 1-29 of Respondent's Proposed Findings of Facts are adopted in substance, in so far as material. COPIES FURNISHED: Ron Ward Qualified Representative For J. P. Ward 10 Rosewood Drive Mary Esther, Florida 32569 John R. Dowd, Esquire Representing Okaloosa County P. O. Box 404 Shalimar, Florida 32579 Steven K. Hall, Esquire Assistant General Counsel Representing the Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 (A Dale H. Twachtmann, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue addressed in this proceeding is whether Respondent should be fined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact On August 3, 1989, and again in March, 1992, Respondent was hired by Janet Thompson to perform septic tank work on her septic tank system located at her home at 3168 Pins Lane, Gulf Breeze, Santa Rosa County, Florida. Her system was backing up into her house. Ms. Thompson contacted Mr. Burkett through his advertisement for Working Man Septic Tank in the Southern Bell Yellow Pages. Mr. Burkett recommended that a new drainline or finger be added to her septic system. Mr. Burkett did put in a new finger. However, the new finger was incorrectly installed, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate in violation of the Rules of the Department regarding the installation of drainlines for septic tank systems. Mr. Burkett's work seemed to solve Ms. Thompson's backup problem. However, a few months later her septic tank system began backing up again. Ms. Thompson again called Mr. Burkett to come and fix the problem. Mr. Burkett recommended another drainline in an "L" shaped configuration. Mr. Burkett installed the new finger. However, he again installed the line incorrectly and violated the Department's Rules, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate. Ms. Thompson's septic tank problem was corrected for a few months and then began backing up once more. Ms. Thompson called another contractor who finally solved the problem by properly installing an extensive drainline system by building the low area of the drainfield and utilizing three truckloads of aggregate. In May, 1990, William Davenport hired Respondent to do some preventive installation of a new drainfield to the septic tank system located at his home at 6220 East Bay Boulevard, Gulf Breeze, Santa Rosa County, Florida. Mr. Burkett only performed part of the work for which he was hired. The work Respondent did perform was incorrect and violated the Department's Rules regarding the installation of drainfields and lines for septic tank systems. Specifically, the work performed by Respondent was incorrect in that the drainfield exceeded the maximum allowable width, no barrier of building paper or other suitable material was installed to protect the infiltration bed and the aggregate did not meet the minimum depth required. Rules 10D-6.056(4)(a), (d) and (e), Florida Administrative Code. Finally, throughout the time period of the repair work on the Thompson and Davenport properties Respondent was not registered or licensed by the Department to perform such services and was advertising to provide such services under the name "Working Man Septic Tank Co." in the Southern Bell Yellow Pages. Both the lack of a registration and the advertisement of an unlicensed business violate the Rules of the Department. Rule 10D-6.075(4)(a), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department impose on Respondent a fine of $2,000.00. DONE and ORDERED this 9th day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DIANNE CLEAVINGER 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 9th day of November, 1994.
The Issue Whether SFP's revised application for a permit to construct a sewage treatment plant with percolation ponds should be granted or, for failure of SFP to give reasonable assurances that the plant will not cause pollution significantly degrading the waters of Gator Cove, be denied?
Findings Of Fact About 1,500 feet from Santa Fe Lake's Gator Cove, SFP proposes to build an extended aeration package sewage treatment plant to serve a "private club with restaurant and overnight accommodations," SFP's Exhibit No. l, to be built between the plant and the lake, on the western shore of Santa Fe Lake, just south of the strait or pass connecting Santa Fe Lake and Little Santa Fe Lake. The site proposed for the waste water treatment plant lies at approximately 177 or 178 feet above sea level, north of Earleton on county road N.E. 28 near State Road 200A, some three miles north of State Road 26, in unincorporated Alachua County, Section 33, Township 8 South, Range 22 East. SFP's Exhibit No. 1. Santa Fe Lake, also called Lake Santa Fe, and Little Santa Fe Lake, also called Little Lake Santa Fe, are designated outstanding Florida waters by rule. Rule 17-3.041(4)(i), Florida Administrative Code. Lake Santa Fe "is . . . the sixth largest non-eutrophic lake in the State of Florida . . . [and] the last remaining large non-eutrophic lake in Alachua County." (0.367). Recreation is a "beneficial use" of these waters. The Lakes Santa Fe are at an elevation of approximately 140 feet above sea level, and their level varies within a range of four feet. Input The proposed plant is to treat sewage generated by staff, by diners at a 150-seat restaurant, and by inhabitants of 150 lodge or motel rooms, comprising 100 distinct units. On the assumptions that 150 rooms could house 275 persons who would generate 75 gallons of sewage a day for a daily aggregate of 20,625 gallons, and that a 150-seat restaurant would generate 50 gallons of sewage per seat per day, full occupancy is projected to engender 28,125 gallons of sewage per day. This projection is based on unspecified "D.E.R. criteria; (5.35) which the evidence did not show to be unreasonable. Full occupancy is not foreseen except around the Fourth of July, Labor Day and on other special occasions. An annual average flow of between 15 and 20,000 or perhaps as low as 13,000 gallons per day is envisioned. (S.38) The proposed plant is sized at 30,000 gallons per day in order to treat the peak flow forecast and because package plants are designed in 5,000 gallon increments. Sluice-gate valves and baffling are to permit bypassing one or more 5,000 gallon aeration units so plant capacity can be matched to flow. The composition of the sewage would not be unusual for facilities of the kind planned. As far as the evidence showed, there are no plans for a laundry, as such, and "very little laundry" (S.37) is contemplated. The health department would require grease traps to be installed in any restaurant that is built. Gravity would collect sewage introduced into 2,000 feet of pipe connecting lodging, restaurant and a lift station planned (but not yet designed) for construction at a site downhill from the site proposed for the water treatment plant. All sewage reaching the proposed treatment plant would be pumped 3,000 feet from the lift station through a four-inch force main. Influent flow to the treatment plant could be calculated by timing how long the pump was in operation, since it would "pump a relatively constant rate of flow." (S.39) Treatment Wastewater entering the plant would go into aeration units where microorganisms would "convert and dispose of most of the incoming pollutants and organic matter." (S.40) The plant would employ "a bubbler process and not any kind of stirring-type motion . . . [so] there should be very little:; aerosol leaving the plant," (S.42) which is to be encircled by a solid fence. Electric air blowers equipped with mufflers would be the only significant source of noise at the proposed plant, which would ordinarily be unmanned. If one blower failed, the other could run the plant itself. A certified waste water treatment plant operator would be on site a half-hour each week day and for one hour each weekend. SFP has agreed to post a bond to guarantee maintenance of the plant for the six months' operation period a construction permit would authorize. (0.63) The proposed plant would not "create a lot of odor if it's properly maintained." Id. The specifications call for a connection for an emergency portable generator and require that such a generator be "provide[d] for this plant. . . ." (S. 43). The switch to emergency power would not be automatic, however. A settling process is to follow extended aeration, yielding a clear water effluent and sludge. Licensed haulers would truck the sludge elsewhere for disposal. One byproduct of extended aeration is nitrate, which might exceed 12 milligrams per liter of effluent, if not treated, so an anoxic denitrification section has been specified which would reduce nitrate concentrations to below 12 milligrams per liter, possibly to as low as 4 or 5 milligrams per liter. Before leaving the plant, water would be chlorinated with a chlorinator designed to use a powder, calcium hypochlorite, and to provide one half part per million chlorine residual in the effluent entering the percolation ponds. A spare chlorine pump is to be on site. The effluent would meet primary and secondary drinking water standards, would have 20 milligrams or less per liter of biochemical oxygen demand or, if more, no more than ten percent of the influent's biochemical oxygen demand, and total suspended solids would amount to 20 milligrams or less per liter. (5.294- 295). Half the phosphorous entering the plant would become part of the sludge and half would leave in the effluent. Something like ten milligrams per liter of phosphorous would remain in the effluent discharged from the plant into the percolation ponds. (5.202). Although technology for removing more phosphorous is available (S.298, 0.170-171), SFP does not propose to employ it. Allen flocculation treatment followed by filtration could reduce phosphorous in the effluent to .4 milligrams per liter, but this would increase the cost of building the treatment plant by 30 to 40 percent; and operational costs would probably increase, as well, since it would be necessary to dispose of more sludge. (0.170-172). SFP did agree to accept a permit condition requiring it to monitor phosphorous levels in groundwater adjacent to the proposed plant. (0.63). Land Application Three percolation ponds are planned with an aggregate area of 30,000 square feet. At capacity, the plant would be producing a gallon and a half of effluent a day for each square foot of pond bottom in use. The ponds are designed in hopes that any two of them could handle the output of effluent, even with the plant at full capacity, leaving the third free for maintenance. The percolation ponds would stand in the lakes' watershed, in an area "of minimal flooding, (S.30) albeit outside the 100-year flood plain. Santa Fe Lake, including Gator Cove, and Little Santa Fe Lake are fed by groundwater from the surficial aquifer. All effluent not percolating down to levels below the surficial aquifer or entering the atmosphere by evapotranspiration would reach the lake water one way or another sooner or later. If percolation through the soils underneath the percolation ponds can occur at the rate SFP's application assumes, effluent would not travel overland into Lake Santa Fe except under unusually rainy conditions, which would dilute the effluent. Whether the planned percolation ponds would function as intended during ordinary weather conditions was not clear from the evidence, however. In the event the ponds overflowed, which, on SFP's assumptions, could be expected to happen, if peak sewage flaw coincided with weather more severe than a 25-year rainfall, effluent augmented by rainwater would rise to 179.87 NGVD (S.34), then overflow a series of emergency weirs connecting the ponds, flow through an outfall ditch, drain into a depression west of the ponds, enter a grassed roadside ditch, and eventually reach Lake Santa Fe after about a half a mile or so of grass swales. (5.69). Sheet flow and flow through an ungrassed gulley in the direction of Gator Cove (0.154) are other possible routes by which overflowing waters might reach the lake. (0.263). Since the facilities the plant is designed to serve are recreational, wet weather would discourage full use of the facilities and therefore full use of the water treatment system. Effluent traveling over the surface into Gator Cove would wash over vegetation of various kinds. Plants, of course, do take up phosphorous, but they don't do it forever, and if you leave a plant system alone, it will come to a steady state in which there is no net storage of phosphorous in the plant material. (0.166) Whether by sheet flow or by traversing swales, overland flow would reach Gator Cove within hours. Effluent traveling through the surficial aquifer would not reach the lake for at least five years. (S.238-9). It could take as long as 45 years. (0.316). In the course of the effluent's subterranean passage, the soil would take up or adsorb phosphorous until its capacity to do so had been exhausted. In addition, interaction with certain chemicals found in the soil, primarily calcium, precipitates phosphorous dissolved in groundwater. As between adsorption and precipitation, the former is much more significant: "[W]ith a three-meter distance you can expect at least 70 to 80 percent removal of phosphorous just by a a[d] sorption alone." (0.21). Precipitated phosphorous does not return to solution, unless the soil chemistry changes. (0.19) Adsorption, however, is reversible, although not entirely, because of the "hysteresis phenomenon." (0.19) Eventually, a kind of dynamic equilibrium obtains to do with the binding of the phosphorous to soil constituents, binding or precipitation of phosphorous. At some point . all of the binding sites become saturated . [and] the amount of phosphorous leaving, into the lake really, will be equal to the amount of phosphorous going into the the system. When there is no more place to store the phosphorous in the ground, then the output is equal to the input and that is called the steady state. (0.161) Although precipitation of phosphorous would not reach steady state under "conditions that render the phosphorous-containing compound insolu[]ble," (0.168) these conditions were not shown to exist now "much less . . . on into perpetuity." Id. Spring Seep A third possible route by which the effluent might reach lake waters would begin with percolation through the sand, which is to be placed on grade and on top of which the percolation ponds are to be constructed. Underground, the effluent would move along the hydraulic gradient toward the lake unless an impeding geological formation (an aquiclude or aquitard) forced it above ground lakeward of the percolationi ponds. In this event, the effluent would emerge as a man-made spring and complete its trip to Gator Cove, or directly to the lake, overland. The evidence demonstrated that a spring seep of this kind was not unlikely. Relatively impermeable clayey soils occur in the vicinity. A more or less horizontal aquitard lies no deeper than four or five feet below the site proposed for the percolation ponds. Conditions short of an actual outcropping of clayey sand could cause effluent mounding underground to reach the surface. Nor did the evidence show that an actual intersection between horizontal aquitard and sloping ground surface was unlikely. Such a geological impediment in the effluent's path would almost surely give rise to a spring seep between the pond site and the lakes. In the case of the other percolation ponds in this part of the state that do not function properly, the problem is n [U] sually an impermeable layer much too close to the bottom of the pond," (S.179), according to Mr. Frey, manager of DER's Northeast District. Phosphorous in effluent travelling by such a mixed route would be subject to biological uptake as well as adsorption and precipitation, but again a "steady state" would eventually occur. On Dr. Bothcher's assumptions about the conductivity of the clayey sand (or sandy clay) lying underneath the topsoil, the effluent would accumulate as a mound of groundwater atop the clay unit, and seep to the surface in short order; and "after a matter of probably weeks and maybe months, it would be basically of the quality of the water inside of the percolation pond." (0.278). More Phosphorous in Gator Cove The total annual phosphorous load from all existing sources "to the lake" has been estimated at 2,942 kilograms. Assuming an average effluent flow of 17,000 gallons per day from the proposed plant, "the total phosphorous load [from the proposed plant] will be 235 kilograms per annum," (0.16), according to Dr. Pollman, called by SFP as an expert in aquatic chemistry. Even before any steady state condition was reached, 20.75 to 41.5 kilograms of phosphorous, or approximately one percent of the existing total, would reach the lake annually from the proposed plant, on the assumptions stated by Dr. Pollman at 0.22-23 (90 to 95 percent removal of phosphorous in the soils and average daily flow of 30,000 gallons). Santa Fe Lake is more than two miles across and two miles long, and Little Santa Fe Lake, which may be viewed as an arm of Santa Fe Lake, is itself sizeable, with a shoreline exceeding two miles. But Gator Cove is approximately 200 yards by 100 yards with an opening into Santa Fe Lake only some 50 to 75 yards wide. (0.154). On a site visit, Dr. Parks observed "luxuriant growth of submerged plants" (0.154), including hydrilla, in Gator Cove. If a one percent increase in phosphorous were diffused evenly throughout the more than eight square miles Santa Fe Lake covers, there is no reason to believe that it would effect measurable degradation of the quality of the water. Some nutrients are beneficial, and the purpose of classifying a lake is to maintain a healthy, well-balanced population of fish and wildlife. It's hard to see how 1.4 percent increase would lower the ambient quality. But . . . seepage into Gator Cove, which is a much more confined place [100 by 200 yardsj [would make it] quite probable that there would be a lowering of ambient water quality in the site . R] educed dispersion . . . in this cove would allow . . . phosphorous to build up. (0.156) Overland effluent flow to Gator Cove would increase concentrations of phosphorus there, with a consequent increase in the growth of aquatic plants, and the likely degradation of waters in the Cove, unless rapid and regular exchange of lake and cove waters dispersed the phosphorous widely, promptly upon its introduction Except for testimony that wind-driven waves sometimes stir up phosphorous laden sediments on the bottom, the record is silent on the movement of waters within and between Lake Santa Fe and Gator Cove. The record supports no inference that phosporous reaching Gator Cove would be dispersed without causing eutrophic conditions significantly degrading the water in the Cove. Neither does the record support the inference, however, that effluent moving underground into the lakes would enter Gator Cove. On this point, Dr. Bottcher testified: [T]he further away from the lake that you recharge water the further out under a lake that the water will be recharging into the lake; gives it a longer flow . . . it's going to migrate and come up somewhat out into the lake. (0.281-2) Phosphorous in the quantities the treatment plant would produce, if introduced "somewhat out into the lake" would probably not degrade water quality significantly, notwithstanding testimony to the contrary. (0.349, 354). Sands and Clays DER gave notice of its intent to deny SFP's original application because SFP proposed to place the pond bottoms approximately two and a half feet above an observed groundwater table. Placement in such proximity to groundwater raised questions about the capacity of the ground to accept the effluent. In its revised application, SFP proposes to place sand on the existing grade and construct percolation ponds on top of the sand. By elevating the pond bottoms, SFP would increase the distance between the observed groundwater table and pond bottoms to 5.2 feet. (S.256, 257). This perched water table, which is seasonal, is attributable to clayey sand or sandy clay underlying the site proposed for the percolation ponds. Between January 9, 1985, and January 17, 1985, "following a fairly dry antecedent period," (S.229) Douglas F. Smith, the professional consulting engineer SFP retained to prepare the engineering report submitted in support of SFP's permit applications, conducted six soil borings in the vicinity of the site proposed for the plant. One of the borings (TB 5) is in or on the edge of a proposed percolation pond and another (TB 4) is slightly to the north of the proposed pond site. Three (TB 1, 2 and 3) are east of the proposed pond site at distances ranging up to no more than 250 feet. The sixth is west of the proposed site in a natural depression. Mr. Smith conducted a seventh test boring under wetter conditions more than a year later a few feet north of TB 4. Finally, on September 5, 1986, during the interim between hearing days, Mr. Smith used a Shelby tube to obtain a soil sample four to six feet below grade midway between TB 4 and TB 5. 1/ The sites at which samples were taken are at ground elevations ranging from 173 to 178 feet above sea level. From the original borings and by resort to reference works, Mr. Smith reached certain general conclusions: The top four feet or so at the proposed pond site consists of silty sand, 17 percent silt and 83 percent quartz sand. This topsoil lies above a two-foot layer of clayey sand, 20 percent clay, 6 percent silt and 74 percent sand. Below the clayey sand lies a layer some eight feet thick of dense, silty sand, 23 percent silt, 7 percent clay and 70 percent sand, atop a one and one-half foot layer of clayey sand, separating loose, quartz sands going down 40 feet beneath the surface from what is above. These formations "are very heterogeneous, in the sense of the position and occurrence of the clay layers or the sandy layers . . .," (0.230) and all occur within the surficial aquifer. "There are layers of clay within it, and so perched water tables are rather common." (0.225). In March of 1986, the regional water table was some 17 feet down. SFP Exhibit 1B. Below the surficial aquifer lie the Hawthorne formation and, at a depth of 110 feet, the limestone of the Floridan aquifer. The soils above the Hawthorne formation are not consolidated. (S.254, 255). Conductivity Measurements The applicant offered no test results indicating the composition or conductivity of soils lying between the easternmost test boring and Gator Cove, some 1,200 feet distant. No tests were done to determine the conductivity of the deeper layer of clayey sand beneath the site proposed for the ponds. Tests of a sample of the topsoil in TB 7 indicated horizontal permeability of 38.7 feet per day and vertical permeability of six feet per day. On the basis of an earlier test of topsoil in TB 3, "hydraulic conductivity of the surface soils was measured to be 8.2 feet per day. . . ." SFP's Exhibit No. 1B. From this measurement, vertical hydraulic conductivity was conservatively estimated at .82 feet (9.84 inches) per day. Id. The design application rate, 2.41 inches per day, is approximately 25 percent of 9.84 inches per day. Id. The initial test done on a sample of the clayey sand, which lay beneath the topsoil at depths of 3.5 to 5.5 feet, indicated a permeability of 0.0001 feet per day. Thereafter, Mr. Smith did other testing and "made some general assumptions" (S. 235) and concluded that "an area-wide permeability of this clayey sand would be more on the order of 0.0144 feet per day." (S. 234). Still later a test of the sample taken during the hearing recess indicated hydraulic conductivity of 0.11 feet per day. SFP's Exhibit No. 10. The more than thousandfold increase in measured conductivity between the first laboratory analysis and the second is attributable in some degree to the different proportions of fines found in the two samples. The soil conductivity test results depend not only on the composition of the sample, but also on how wet the sample was before testing began. Vertical Conductivity Inferred On March 6, 1986, ground water was observed on the site about two and a half feet below the surface. SFP's expert, Mr. Smith, concluded that it was "essentially a 1.5 foot water table, perched water table over the clay." (0.422). There was, however, groundwater below, as well as above, the clay. On March 12, 1986, the water table at this point had fallen six inches. In the preceding month rainfall of 5.9 inches had been measured in the vicinity, after 5.1 inches had been measured in January of 1986, but in November and December of 1985 "there was a total of 0.6 inches of rainfall." (0.421). Later in the year, notwithstanding typically wet summer weather, no water table was measured at this point. From this Mr. Smith concluded that, once the clayey sand layer is wetted to the point of saturation, conductivity increases dramatically. If that were the case, a more or less steady stream of effluent could serve to keep the clayey sand wetted and percolation at design rates should not be a problem. But Dr. Bottcher, the hydrologist and soil physicist called as a witness for the Association, testified that the six- inch drop over six days could be attributed, in large part, to evapotranspiration. He rejected the hypothesis that the clayey sand's conductivity increased dramatically with saturation, since "the actual water table was observed . about three weeks after the very heavy rainfall had stopped" (0.290) and had probably been present for at least a month; and because the soil survey for Alachua County reports that perched water tables ordinarily persist for two months (0.227) in this type of soil. Certain soils' hydraulic conductivity does diminish with dessication, but such soils usually regain their accustomed conductivity within hours of rewetting. Dr. Bottcher rejected as unrealistically optimistic the assumption SFP's expert made about the conductivity of the clayey sand on grounds that "the conductivity that . . . [SFP] used, if you went out there you couldn't perch a water table for a month." (0.277). In these respects, Dr. Bottcher's testimony at hearing has been credited. In the opinion of the geologist who testified on behalf of the Association, Dr. Randazzo, a minimum of seven or eight additional augur borings in "definitive patterns to the northeast and to the northwest" (0.240) to depths of 15 to 20 feet, with measurements within each augur boring every two feet, are necessary to determine "how permeable the soils are and how fast the waters would move through them." (0.240). This testimony and the testimony of the soil physicist and others to the same general effect have been credited, and Mr. Smith's testimony that no further testing is indicated has been rejected. Wet Ground In the expert opinion of a geologist who testified at hearing, "it is reasonable to assume that saturation conditions of the surficial aquifer in this area can be achieved," (0.238) even without adding effluent from a wastewater treatment plant. The evidence that soils in the vicinity of the site have a limited capacity to percolate .water came not only from engineers and scientists. Charles S. Humphries, the owner of the property 150 feet from the proposed percolation site, "put a fence post line . . . every ten feet, and every ten feet [he] hit clay." (0.372). Three quarters of an inch of rain results in waters standing overnight in neighboring pastures. In parts of the same pastures, rain from a front moving through "will stay for a week or so." (0.373). It is apparent that the area cannot percolate all the rainfall it receives. This is the explanation for the gully leading down toward Gator Cove. Six-feet deep (0.377), "the gully is a result of natural surface runoff." (0.263).
Findings Of Fact During 1990, Respondent/Applicant, City of Lynn Haven, filed several applications with the Respondent, Department of Environmental Regulation, seeking the issuance of several permits to build a wastewater collection system and a two million gallon per day advanced wastewater treatment (AWT) plant. The proposed facility is intended to replace the wastewater treatment facility currently being used by the City of Lynn Haven. After a review of the applications the Department proposed several Intents to Issue covering the different aspects of the proposed projects. The Intents to Issue included: A) a variance and dredge and fill permit, pursuant to Sections 403.201, 403.918, 403.919, Florida Statutes, and Rule 17-312, Florida Administrative Code, authorizing a subaqueous crossing of North Bay (Class II waters) and installation of a force main (permit #031716641), B) a collection system permit, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-600 and 17-604, Florida Administrative Code, for the installation of approximately 11 miles of pipe from North Bay to the proposed treatment plant, C) a dredge and fill permit #031785181, pursuant to Sections 403.918, 403.919, Florida Statutes, and Rules 17-4, 17-312, Florida Administrative Code, authorizing 10 incidental wetland crossings associated with the collection system, and, D) a construction permit #DC03-178814, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-302, 17-600 and 17-611, Florida Administrative Code, authorizing the construction of a 2.0 mgd wastewater treatment plant. Sand Hill Community Improvement Association challenged the Department's Intents to Issue. The Sand Hill Community Improvement Association (Sand Hill) is an association composed of 74 formal members plus numerous supporters. Both members and supporters are residents who live near the site of the proposed Lynn Haven sewage treatment plant. They are sufficiently close to the plant site that construction of the proposed project could impact their property. The members are very concerned about any threat of pollution to the aquifer from the proposed plant since all of the members are dependent on private wells for their drinking water. Additionally, members of the association use the proposed site, as well as the associated wetlands, Burnt Mill Creek and the nearby lakes, for a variety of recreational purposes, including hunting, fishing, hiking, bird-watching, boating and swimming. Given these facts, the Association has standing to challenge the Department's Intents to Issue involved in this case. The City of Lynn Haven is located on a peninsular section of the south shore of North Bay and, except for its connection to the land, is surrounded by environmentally sensitive Class II or Class I waters. Lynn Haven's existing wastewater treatment plant was poorly designed, has not worked properly, and is old and outdated. The plant is permitted to treat up to 950,000 gallons per day. However, the existing plant is currently exceeding its originally permitted treatment limits and is treating in excess of 1,200,000 gallons per day. The sewage only receives secondary treatment, Secondary treatment is the minimum state standard for wastewater treatment. The secondarily treated wastewater is pumped several miles to a spray irrigation site located in the eastern portion of the City. The sprayfield site has never worked properly due to a high groundwater table and a confining layer of soil, both of which prevent the effluent from percolating into the ground. Because the sewage effluent cannot percolate into the ground, the existing operation frequently results in direct runoff into a ditch which empties into North Bay, a Class II waterbody. Such discharge of wastewater effluent into Class II waters is prohibited by Department regulations. 1/ At this time, the existing wastewater treatment facility is in violation of both DER and EPA standards and is under enforcement action by both agencies. The existing facility is currently operating without a permit and the Department has advised Lynn Haven that the existing facility as it now operates can not be permitted. In fact, all the parties agree that the City is in serious need of a wastewater treatment facility which works and does not pollute the environment. However, the parties disagree over the method by which proper wastewater treatment could be accomplished by Lynn Haven. Since 1972, the City, through various consultants and with the aid of DER, has reviewed approximately 40 alternatives for wastewater disposal. After this review, the City of Lynn Haven selected the alternative which is the subject of this administrative hearing. The alternative selected by the City of Lynn Haven consists of the construction of a proposed advanced wastewater treatment (AWT) plant and distribution system. The new plant will be on a 640 acre parcel of property located approximately 12 miles north of Lynn Haven. The location of the new plant will necessitate the rerouting of the wastewater from the old plant to the new plant by construction of a new transmission line approximately 12 miles north of the City across North Bay and parallel along State Road 77. 2/ The treatment process proposed for use in the new AWT plant is known as the AO2 process. The process is patented. The AO2 treatment process primarily consists of biological treatment with settling and filtration. The treatment process also includes a chemical backup treatment to further reduce phosphorus if necessary. The evidence demonstrated that this type of facility has been permitted by the Department in at least five other wastewater facilities throughout the state. The treatment facility will have a two million gallon per day, lined holding pond on site for the purposes of holding improperly treated wastewater for recirculation through the proposed facility. Any excess sludge generated by this treatment process would be routed to lined, vacuum-assisted, sludge drying beds. The sludge would then be transported offsite to a permitted landfill for disposal. The evidence demonstrated that this treatment process would not produce any objectionable odors. Once the wastewater is treated, it will be disinfected by chlorination to eliminate pathogens. The chlorination process is expected to meet state standards. After chlorination, a dechlorination process would occur to remove any chlorine residuals which would have a harmful affect on the environment. The treated wastewater would then be re-aerated and discharged through the distribution system indirectly into a wetland located on the 640 acre parcel of property. The quality of the treated wastewater is expected to meet the advanced wastewater treatment (AWT) standards. These standards are five milligrams per liter total suspended solids (T.S.S.), five milligrams per liter BOD, three milligrams per liter nitrogen (N), one milligram per liter phophorus (P). Ph will be in the range of six to eight units on an average annual basis and can be adjusted up or down if necessary to meet the ph levels of the ecology into which the wastewater ultimately flows. This effluent quality is approximately five times cleaner than secondarily treated effluent. Additionally, as a condition of the draft permit, the proposed facility would be operated by a state-licensed operator and would be routinely monitored to insure that the treated wastewater effluent meets advanced wastewater treatment standards. Given these facts, the evidence demonstrated that the applicant has supplied reasonable assurances that the plant will perform as represented and that the effluent will meet the state standards for advanced wastewater treatment. As indicated earlier, the site for the proposed AWT plant contains approximately 640 acres and is located approximately 12 miles north of Lynn Haven in an area known locally as the Sand Hills. The City specifically purchased this parcel of property for the construction of the proposed wastewater treatment plant. The plant itself would be located in the northeast corner of the property. The 640 acre site was previously used for silviculture. The entire area is currently planted in pines except for a low area that is dominated by a pristine, woody wetland system of titi. The titi wetland is approximately 212 acres in size and generally runs through the center of the property from the northeast to the southwest. The wetland is low in acidity, with an estimated ph between 4 and 5. The site consists of hilly, mineralized soils. The soils within the forested wetland are organic in nature. Based on the evidence at the hearing, there does not appear to be any significant confining layers of soil which would prevent the treated wastewater from percolating in the soils and draining towards the wetland and ultimately into Burnt Mill Creek, a Class III waterbody. Once the effluent leaves the plant, it would go through a distribution system. The proposed distribution system will consist of six, 500 foot long, 12 inch diameter perforated pipes. Each 500 foot section of pipe has 100 one and one-half inch orifices which will discharge the treated effluent onto an eight foot wide concrete pad. This concrete pad will dissipate the effluent's energy, prevent erosion at the orifice site and insure that the effluent sheetflows onto and eventually into the sandy soils of the plant site and ultimately into the receiving wetland. The distribution pipes are located around the east, north and western portions of the receiving wetland and are variously set back from the receiving wetland approximately 80 to 200 feet. The distribution system is designed with valves to allow for routing of flow to different branches of the system if it is determined through long term monitoring that there is a need to allow for any of the receiving wetland to dry out. None of the distribution branches are located in any jurisdictional wetlands of the State of Florida. The receiving wetland will receive a hydraulic loading rate of approximately 1.8 inches per week once the new advanced wastewater treatment plant is operating at capacity. Both the surface waters and groundwaters on the 640 acre parcel flow from northeast to southwest across the property. The evidence clearly demonstrated that any treated wastewater discharged on the site would move down hill by surface or groundwater flows towards the wetlands in the central portion of the property and eventually discharge into Burnt Mill Creek located at the southwest corner of the parcel. The evidence demonstrated that it would be highly unlikely for the surface or groundwater to move in any other direction and would be unlikely for the surface or groundwater to move towards any residents located to the north or east of this parcel. Evidence of the topography and its relatively sharp gradient clearly demonstrated that the treated wastewater discharged in the northeast corner of this site would not result in any significant still water ponding and would exit the site at the southwest corner of the property in approximately 14 hours. The evidence did demonstrate that, depending on the wetness of the weather, there may likely be certain times of the year when a flowing type of ponding would occur. However, this wet weather ponding was not shown to be of a duration which would impact to a significant degree on the flora and fauna of the area or increase the number of disease bearing mosquitoes in the area. As indicated earlier the treated effluent from the proposed AWT plant will flow into Burnt Mill Creek. Burnt Mill Creek will ultimately carry the treated wastewater approximately 11 miles down stream to North Bay. The City can directly discharge up to two million gallons per day of AWT water into Burnt Mill Creek without violating state water quality standards. Therefore, the volume of wastewater discharged into Burnt Mill Creek should not have significant impacts on surface and ground water quality. Moreover, Chapter 17-611, Florida Administrative Code, authorizes the discharge of up to 2 inches per week to receiving wetlands provided wastewater is treated to AWT standards. The evidence demonstrated that this rule was developed as an experimental effort to determine if wetlands could be appropriate areas for wastewater effluent to be either discharged or treated. These state limits were intended to be very conservative limits and were designed to insure that the impacts to receiving wetlands would be minimal. The evidence and testimony demonstrated that the receiving wetland system involved in this case should not be adversely impacted beyond those limits set forth in Section 17-611.500, Florida Administrative Code, for flora, fauna, macroinvertebrates, fish or vegetation and will meet all standards set forth in Chapter 17-611, Florida Administrative Code. However, it should be noted that the wetland/wastewater program is highly experimental and very little is known about the actual impacts of wetland/wastewater systems since facilities similar to the one proposed by Lynn Haven have not yet been placed in service. The evidence did show that there would be some long term impacts to flora and fauna in the wetland area primarily due to ponding, changed ph and the introduction of nutrients and pollution in the form of the effluent. However, the regulation does allow for some change within a receiving wetland and the evidence did not demonstrate that these changes would be significant or detrimental. Petitioners' own witness concluded that other deep wetland treatment systems are doing a very good job in meeting state water quality standards. Although Petitioners' expert noted potentially adverse impacts to flora and fauna from other wastewater treatment systems, these other systems were slow moving, impoundment-type systems that are not similar to the wastewater/wetlands system proposed by the City of Lynn Haven. The Lynn Haven system is designed for percolation and sheetflow, not ponding. Though there should be some expected changes, no evidence was provided that the receiving wetlands for the Lynn Haven facility would be affected to the extent there would be violations of any standard as set forth in Chapter 17-611, Florida Administrative Code. In essence, the legislature has determined that such experimentation with wetland areas is appropriate, albeit, even with the conservative limits of DER's rule, may prove to be a mistake. This facility is designed to fit within that rule and in fact is probably the best technology available for use in a wetland/wastewater situation. Finally, in order to avoid any potential impacts on the area which may over time become significant an approved monitoring program for surface water quality and affects on flora and fauna, as well as a groundwater monitoring program are required as conditions of the permit. The groundwater monitoring program has been designed to monitor any potential long term impacts to groundwater. With these protections there should not be any significant adverse impacts to surface or groundwater quality and the applicant is entitled to a construction permit for the AWT plant and distribution system. Lynn Haven's sewage would reach the proposed AWT plant through a transmission line. The transmission line would run from Lynn Haven's existing wastewater treatment plant across North Bay and through the unincorporated area of South Port. The Southport area is not sewered and utilizes individual septic tanks for its sewage. The transmission line would be constructed entirely in state road right-of-way. The line would terminate at the 640 acre site described above. A new, variable speed pumping station would be constructed adjacent to the old wastewater treatment plant. From this pump station, a 24 inch line would be constructed on City right-of-way up to the south shore of North Bay. At this point, the transmission line would be reduced in size to 20 inches and would be embedded approximately three feet below the Bay bottom. An additional variable speed pumping station would be located approximately half way along the 12 mile route of the transmission line to insure adequate pressure to pump wastewater to the new wastewater treatment plant. The pumps are to be employed to insure that the wastewater is continuously pumped uphill to the new site so that waste does not set, become septic, and create odor problems. The pumps are equipped to provide for chemical control of odor if necessary. Also, as a condition of the permit, the pumping stations are required to have backup power supplies should power be lost to the stations. The pumping stations and backup power supplies are to be tested monthly and the pumps are required to be continuously monitored by radio telemetry to insure they are operating properly. Additionally, the City of Lynn Haven will be required, as a condition of the permit, to visually inspect the entire length of the wastewater transmission line three times per day. The portion of the transmission line which would cross North Bay is approximately 3000 feet in length and would be constructed of high density polyethylene pipe (HDPE) with a wall thickness of one and one-half inches. HDPE pipe is used to transport materials such as hazardous wastes where leakage is not permissible. This type of pipe is virtually inert in that it is highly resistant to corrosion and other chemical reactions. It is also impact resistant and has a very high tensile strength. The pipe comes in 40 foot segments and is heat welded (fused) together. This type of joint significantly reduces the chance of any leakage. In fact, leakage around pipe joints is more likely to occur with other types of pipe and pipe connections. HDPE pipe is currently carrying wastewater across Watson Bayou in Bay County, Florida. 3/ There have been no reported problems with leaks or breaks occurring in the pipe crossing Watson Bayou. Given these facts, the probability of the proposed HDPE pipe leaking or breaking is extremely low, albeit not impossible, and such pipe appears to be the best material available for constructing a wastewater treatment transmission line across protected waters of the State. As a condition of the construction permit, the portion of the transmission line crossing North Bay will be required to have isolation valves at each end so that the pipe may be completely isolated in the event that it needs repair. The underwater portion of the line would be visually inspected by a diver twice per year and the line would be pressure tested before being placed into service. Additionally, pressure tests would be performed once a year. The construction permit also requires Lynn Haven to periodically inject dye into the proposed transmission line to check for any small leaks that may not otherwise be detected. Finally, the HDPE pipe would also be equipped so that television cameras could be inserted into the pipe to routinely inspect the interior of the pipe. In the event the HDPE portion of the transmission line would need to be repaired, the line could be immediately, temporarily repaired by a dresser coupling. A permanent repair could then be made in less than 24 hours once the material and equipment were staged at the site. The City intends to locally stockpile all necessary parts and equipment to effect any required repair to prevent any delay beyond four days. Permanent repairs would be accomplished by floating the line to the surface. The area needing repair would be cut out and a new section would be put in place by heat fusion. The line would then be pressure tested to insure the absence of leaks and placed back into service. During this process, the line would be taken out of service by the isolation valves and flow would be diverted to the eight million gallon holding ponds at the City of Lynn Haven's existing facility. These holding ponds can hold four days worth of wastewater from the City of Lynn Haven. Lynn Haven is required, as a condition of the construction permit, to have this reserve capacity as well as have a contractor on standby to make any repairs in the event such repairs are necessary. All of the technical specifications for the transmission system and the operating conditions imposed on it are designed to insure that the system does not fail or develop any leaks which could impact receiving waters, including North Bay. Given the permit conditions, the required inspections for leaks, the sound engineering design and quick repair methods proposed, the evidence demonstrated that the probability of any leak occurring in the portion of the transmission line crossing North Bay is extremely low and that if such a leak does occur any potential harm to the environment will likely be limited and quickly eliminated. The evidence demonstrated that the design of the transmission line and permit conditions provide reasonable assurances that the transmission line will meet or exceed the Department standards set forth in Chapter 17-604, Florida Administrative Code. Therefore, the applicant has provided reasonable assurances that the transmission line/collection system will not violate Department standards or rules and the applicant is entitled to a permit (permit #CS03-178910) for the proposed collection system. In addition to requiring a construction permit/collection system permit for the wastewater transmission line, the line will also require dredge and fill permits and a variance for crossing waters of the state. There are ten incidental crossings of state waters and one major crossing o f North Bay. Of the ten incidental crossings, two are over small creeks (Scurlock and Little Burnt Mill) These two incidental creek crossings will be accomplished by placing the transmission line (ductile iron pipe) on top of pilings placed in the water. Best management practices such as turbidity curtains and other erosion control practices are proposed and required by the permit to minimize construction impacts on water quality. The only impacts to wetland resources would be from the placement of the pilings. The evidence demonstrated that any impact would be minimal and not significant. The evidence did not demonstrate that the aerial crossings would have any long term water quality or environmental impacts. The remaining eight incidental crossings of waters of the state consist of small, seasonally wet ditches which would be traversed by trenching and burying the transmission line. Again, turbidity controls such as curtains and hay bales would be employed to protect water quality. The evidence did not demonstrate that any significant long term or short term impacts to resources of the state would occur. The evidence did demonstrate that the applicant has provided reasonable assurances that water quality standards would not be violated in regards to these 10 incidental water crossings. Likewise, the evidence demonstrated that the construction of these 10 incidental water crossings would not be contrary to the public interest. Therefore, the applicant is entitled to issuance of a dredge and fill permit (permit #031785181) for these 10 water crossing. However, a much harder question arises in relation to the dredge and fill permit and the variance required for the 3,000 foot segment of the wastewater transmission line which crosses North Bay. Pursuant to Rule 17- 312.080(7), Florida Administrative Code, permits for dredging and filling activity directly in Class II waters which are approved for shellfish harvesting by the Department of Natural Resources (DNR) shall not be issued. The reason for the rule is that any pollution caused by dredging and filling and, as in this case, the permanent placement of a sewage pipe in food producing waters could potentially have catastrophic effects on more than just the environment but on local employment in the shellfish industry and the quality of food available to the State. Put simply, the Department has determined by enacting its Rule that the public interest in food producing waters far outweighs any other consideration or criteria under Sections 403.918 and 403.919, Florida Statutes, in determining whether dredging and filling should take place in Class II, shellfish waters. In other words, it is not in the best interest of the public to allow dredging and filling so that a pipe carrying raw sewage can be placed in shellfishing waters. However, irrespective of this determination, the Department believes that, pursuant to Section 403.201(1)(c), Florida Statutes, it may grant a variance from its rules to relieve a hardship. As indicated earlier, North Bay is a Class II waterbody, conditionally approved for shellfishing. North Bay, therefore, falls within the Rule's prohibition against dredging and filling in Class II waters and the City is required to demonstrate the presence of a hardship in order to vary the Rule prohibition and obtain a dredge and fill permit for the North Bay crossing. On issues involving variances, the Department employs a two step analysis. The first part of the analysis is whether a hardship is present and the second is whether, if the variance were granted, would it result in permanent closure of Class II shellfish waters. The Department correctly recognizes that the question of whether a hardship exists is a question of fact and is determined on a case-by-case basis. Surprisingly, in a kind of "what we don't know can't hurt" posture the Department reviews a request for a variance standing alone based on the application as it is presented and does not require analyses of other possible alternatives to the granting of a variance. However, the existence of any alternatives, costs of any alternatives, timeliness of any alternatives, problems with any alternatives, whether an alternative represents a short term or long term solution to a given problem and the implementability of any of the alternatives are all factors utilized by the Department in determining whether or not to grant a variance. The Department's policy of non- review makes no sense, either factually or statutorily, when the Department is faced with varying a prohibition it created in its own rules. Similarly, the Department's policy of not requiring other alternatives to be examined before granting a variance goes against the fact that an applicant has the burden to establish entitlement to a permit and, in the case of a hardship variance, that a hardship exists because reasonable alternatives to granting a variance are not available. 4/ Likewise, the second part of the Department's hardship analysis relating to the permanent closure of shellfishing waters makes no sense given the fact that a non-permanent closure of shellfishing waters may have the same or just as serious effect on employment in the shellfishing industry, the loss of income due to an inability to earn a living in that industry and health risks posed by contaminated seafood. Temporary loss of income or a livelihood can, for all practical purposes, have consequences to the persons directly affected by a temporary closure of shellfishing waters similar in nature those caused by the permanent closure of shellfishing waters. The same can be said for health risks posed by a contaminated food supply. Rule 17-312.080(7), Florida Administrative Code, does not contain any exceptions for the temporary closure of shellfish waters. Nor is the rule limited to instances of permanent closure. Permanent closure is simpy not required in order to support a hardship under Section 403.201, Florida Statutes. Moreover, neither step in the Department's two-step analysis is included in any Rule promulgated by the Department. 5/ Without such a Rule, it is incumbent upon the Department or the applicant to demonstrate the underpinnings for this non-rule policy. No such evidence was presented at the hearing. In fact, the evidence presented at the hearing affirmatively demonstrated that the Department's non-rule policy violated both its own rules and the statute under which it is trying to proceed. As indicated, the issue of hardship is a question of fact and involves a weighing of all the facts and cicumstances involved in this project. In this case, there are shellfishing areas located close to the proposed location of the transmission line. North Bay is sometimes closed to shellfish harvesting by the Department of Natural Resources. These closures generally occur during wet weather conditions and are due to stormwater runoff and the failure of septic tanks in Southport. 6/ Additionally the current Lynn Haven system also contributes to the closure of North Bay. No competent, substantial evidence was provided that issuance of the permit and variance would result in the permanent closure of shellfish waters. The location of the proposed transmission line would be several hundred feet west of the Bailey Bridge embedded in the Bay floor. 7/ The proposed alignment of the transmission line through North Bay is in an area which is relatively biologically unproductive. The proposed placement of the transmission line avoids the few grassbeds that exist in the nearshore shallow areas except for approximately 200 square feet of grass. During construction of the line, these grasses would be removed immediately before the line is placed in a trench and then would be promptly replanted in the same area. The evidence demonstrated that the affected areas of grass should be able to reestablish itself. The evidence further demonstrated that there would not be any long term adverse impacts to these aquatic resources and there should not be any significant long term impacts on the balance of any aquatic life which may exist on the bay bottom. Water quality during construction will be protected by use of turbidity controls to control sediments. Therefore, any short term impacts on aquatic resources are likely to be insignificant. Concerns about long term adverse impacts to Class II waters are greatly reduced by the type of pipe and conditions in the permit which require that the transmission line be routinely inspected and tested to insure that there is no leakage and that in the unlikely event the line should need to be repaired, the line could be easily isolated and quickly repaired. The evidence showed that, to completely avoid Class II waters, the line could be moved several miles to the west or east of the line's proposed location or be placed over or under the Bay. If the line was moved west to the extent that it was in Class III waters, it would be over 40 miles long and would more than double the cost of the project. If the line was moved several miles to the east, it would go through the Deer Point Lake Watershed. The watershed is a Class I water supply for Bay County. Clearly, moving the line either west or east is not practical nor realistically feasible. Tunneling under North Bay would be very risky and is not technically feasible. The length of the tunnel would require steel pipe to be used. If tunneling could be done at all steel pipe would not provide the level of protection afforded by the HDPE pipe proposed by Lynn Haven. Placing the transmission line on pilings for an aerial route over North Bay is uneconomical and would create a potential hazard to navigation. Moreover, an aerial crossing would not solve any pollution problems should the transmission line leak or break and would also still involve a variance request since it would be necessary to dredge and fill in Class II waters for the placement of pilings or supports. Put simply, the evidence, showed that there was no realistic way to avoid Class II waters in North Bay given the location of the proposed wastewater treatment facility. A location which the City knew would require a hardship variance from the rule prohibition of dredging and filling in Class II, shellfishing waters. A hardship which the City created by site selection and which it hoped to overcome by strenuous permit conditions and futuristic speculative benefits to unsewered areas of the County. The existing treatment facility is operating in violation of both EPA and DER requirements, has been issued a notice of violation, is nonpermitted and is destined to be operating under a consent order. The system is hydraulically overloaded, handling approximately 1.2 million gallons per day while its rated capacity is 950,000 gallons per day. Refurbishing Lynn Haven's existing wastewater treatment facility would not be viable since the plant has outlived its useful life, is of a very poor design and probably could not be made to function within Departmental standards and water quality standards. The existing sprayfield does not function and results in overland flow of effluent which discharges to Class II waters. The high water table and presence of a semiconfining layer on the Lynn Haven peninsula virtually guarantee such discharges. Further, the plant only provides secondary treatment. Put simply, Lynn Haven needs another method of handling its sewage. The only remaining alternative to a Bay crossing is to tie into the existing Bay County system and any AWT wastewater treatment plant Bay County may build in the future. 8/ The existing Bay County system provides at most only secondary treatment. The Cherry Street facility, which is part of that system, functions essentially as a lift station rather than a treatment facility. The Military Point Lagoon portion of the system is nonpermitted and is operating under a consent order and has been the subject of enforcement action. The Department has an extensive agreement with Bay County requiring a significant and long term series of actions to deal with their wastewater treatment system. The modifications or improvements to the Bay County system to provide advanced treatment are not imminent and the final system conditions cannot now be determined as they will depend in large measure upon data and analysis remaining to be collected. Currently, the existing Bay County system processes a significant amount of industrial discharge and has a problem with phenols most likely due to industrial waste from two discreet industrial facilities in the County. 9/ However, all of Bay County's wastewater system problems are reasonably solvable and will be corrected in the near future, if they have not already been corrected. Additionally, the amount of sewage Lynn Haven would be sending into the current Bay County system probably would not significantly impact that system and its problems or the County's ability to solve those problems. The County is willing to accept Lynn Haven's sewage into its system and future AWT system. The connection into Bay County's system is a viable alternative currently in existence. Moreover, as indicated, Bay County has a long range plan to build an advanced wastewater treatment plant. As yet the plan remains "just a twinkle in the County's eye" and has not progressed to the design stage. However, this plan, of necessity, will eventually become reality in the next 5 to 10 years. The estimated cost to a Lynn Haven user for the Bay County conceptual system will be $25.00 per month in lieu of $15.00 for the proposed Lynn Haven system. These estimates are at best speculative. However, this cost estimate is not excessive given the fact that a Lynn Haven user lives in an environmentally sensitive area and a Bay County hook-up would eliminate the need to run a sewer pipe through food producing, Class II waters. 10/ Based on these facts, the evidence demonstrated that it was feasible for Lynn Haven to hook into Bay County's wastewater system without creating any more environmental impacts than that system is already experiencing and must solve and which, to a significant degree, have already been solved by Bay County. Given the existence of this alternative to crossing food producing waters and the fact that any future benefits are just as likely to be provided just as quickly by the County through AWT facilities, the applicant has failed to demonstrate the necessity for crossing North Bay and failed to demonstrate entitlement to a hardship variance for that crossing. Therefore, the applicant is not entitled to either a dredge and fill permit or variance for the proposed North Bay crossing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, recommended that the Florida Department of Environmental Regulation enter a final order issuing permit applications CS03178910, DC03178814, and 031785181, and denying the variance and permit number 031716641. RECOMMENDED this 27th day of November, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1991.
The Issue The issue in this case is whether the Petitioner has the actual experience required for certification as a Class B domestic wastewater treatment plant operator.
Findings Of Fact By application filed September 16, 1991, James H. Redden applied for certification as a Class B domestic wastewater treatment plant operator. At the time of the application, Mr. Redden was employed as a laboratory technician at a Class B Collier County regional wastewater treatment facility. From August 15, 1978, to July 31, 1989, Mr. Redden was employed at the Colgate-Palmolive Company facility at Jeffersonville, Indiana. The Colgate-Palmolive treatment facility is an Indiana Class D industrial wastewater treatment plant. Mr. Redden is certified by the State of Indiana as a Class D industrial wastewater treatment plant operator. During his employment at the Jeffersonville facility, Mr. Redden held positions as an associate chemist, senior chemist/plant microbiologist, and wastewater treatment plant supervisor. His duties included daily operations and supervision of personnel, scheduling and performance of maintenance activities, budgeting, ordering, materials balance, sludge management, laboratory analysis, quality assurance and quality control programs, and compliance with various state and federal reporting requirements. Mr. Redden has no experience either in the operation of a drinking water or domestic wastewater treatment plant, or at a DER-permitted industrial wastewater treatment plant.
Recommendation Based on the foregoing, it is hereby: RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of James H. Redden for certification as a Class B wastewater treatment plant operator. DONE and RECOMMENDED this 9th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 9th day of April, 1992. APPENDIX The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner: The Petitioner did not file a proposed recommended order. Respondent: The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-4. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 James H. Redden 1362 Chesapeake, Avenue Naples, Florida 33962 Francine M. Ffolkes, Esq. Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
