The Issue The issue is whether Resort Village Utility, Inc., and SGI Utility, LLC, are entitled to a renewal of a permit for the construction and operation of a wastewater treatment facility with effluent disposal to a rapid-rate absorption field land application system consisting of three absorption beds on St. George Island in Franklin County, Florida.
Findings Of Fact In 1996, DEP issued Permit No. 235845 (subsequently renumbered Permit No. FLA010069-001) to RVU. The permit was issued pursuant to Adams v. Resort Village Utility, Inc. and Department of Environmental Protection, DOAH Case No. 95-0863 (Final Order February 23, 1996). Petitioner, in the instant case, was the petitioner in the prior case. RVU and DEP, Respondents in the instant case, were respondents in the prior case. The original permit authorized RVU to construct and operate an advance wastewater treatment facility with associated reuse/land application system (AWT facility) in a proposed mixed-use development on St. George Island in Franklin County, Florida. Mr. Ben Johnson was the owner of the proposed development and the principal of RVU when DEP issued the original permit. DEP issued the original permit for five years with an expiration date of March 1, 2001. The instant case involves a renewal of the original permit, currently designated as Permit No. FLA010069-002 (the Permit). Since the issuance of the original permit, the AWT facility has been constructed in accordance with its plans and specifications. However, at the time of the final hearing in the instant case, the AWT facility was not operational. The original permit contained certain groundwater monitoring requirements. These requirements included baseline monitoring to collect data on certain contaminants or pollutants before the AWT facility becomes operational for comparison to groundwater monitoring after the AWT facility becomes operational. The original permit did not specify the time frame for beginning and ending the monitoring. RVU furnished DEP with a baseline groundwater monitoring report in December 1997 and June 1998. By letter dated June 15, 1998, Garlick Environmental Associates, Inc., on behalf of RVU, advised DEP that further baseline groundwater monitoring would be suspended until February 1999. RVU properly suspended the baseline groundwater monitoring because of a delay in the construction and operation of the AWT facility. At the time of the final hearing, RVU had not resumed the monitoring. The AWT facility is scheduled to become operational in incremental stages beginning with 30,000 gallons of effluent per day and increasing to 90,000 gallons of effluent per day. The monitoring requirements in the original permit and the instant Permit are sufficient to show at each stage of operation whether the AWT facility will cause an increase in contaminants in Apalachicola Bay. Because the AWT facility is not currently operational, it is not responsible for causing any pollution. In October 1999, Mr. Johnson sold the subject property to SGI Limited Partnership, a Florida limited partnership. Mr. David Wilder is a principal in SGI Limited Partnership and vice-president of SGI Utility, LLC. On February 10, 2000, RVU filed an application with DEP to transfer the original permit to SGI Utility, LLC. By letter dated February 18, 2000, DEP granted the request to transfer the permit contingent upon approval of the sale of the AWT facility by the Florida Public Service Commission (PSC). The February 18, 2000, letter states that DEP would change its records to show SGI Utility, LLC, as owner of St. George Island Resort Village domestic wastewater treatment facility. DEP's letter states that it shall be attached to and become part of domestic wastewater Permit No. FLA010069. On September 1, 2000, SGI Utility, LLC, filed an application with DEP to renew the original permit. The application indicates that SGI Utility, LLC, is the applicant/owner/operator of the AWT facility. Mr. Wilder signed the application as the authorized representative of SGI Utility, LLC. A professional engineer signed the application in his professional capacity, as well as agent for SGI Utility, LLC. The application for permit renewal contains a copy of RVU's PSC certificate. The certificate grants RVU authority to provide wastewater service in Franklin County. The application included the following implementation schedule and completion dates: (a) Begin Construction, September 2000; (b) End Construction, March 2001; (c) Begin Reuse or Disposal, March 2001; and (d) Operational Level Attained, August 2001. SGI Utility, LLC, enclosed a check payable to DEP in the amount of $1,000 with the permit renewal application. The purpose of the check was to cover review fees. By letter dated September 28, 2000, DEP requested additional information. On or about October 5, 2000, the professional engineer for SGI Utility, LLC, sent DEP copies of the signed and sealed cover page for the permit renewal application. DEP subsequently sent SGI Utility, LLC, a copy of a Notice of Application. The notice stated that DEP had received the permit renewal application from SGI Utility, LLC. DEP expected SGI Utility, LLC, to publish the notice in a newspaper of general circulation. For the reasons set forth below, SGI Utility, LLC, never published this notice. After SGI Utility, LLC, received the Notice of Application, Mr. Wilder wrote a letter dated October 11, 2000, to DEP. The letter states that SGI Utility, LLC, as the proposed transferee of the Permit, had filed the application to renew the Permit on behalf of RVU, the current holder of the Permit. Mr. Wilder advised DEP that PSC approval was still pending. The letter states as follows in relevant part: Technically, therefore, SGI Utility, LLC is not yet the holder of the permit, although it is acting with the approval of and as the agent for Resort Village Utility, Inc. Additionally, should the publication Notice be amended to show Resort Village Utility, Inc. and SGI Utility, LLC as the applicant? By letter dated November 2, 2000, Mr. Johnson confirmed that Mr. Wilder was authorized to act on behalf of RVU with respect to all matters relating to the renewal and transfer of the Permit, including without limitation, signing all applications, documents, certificates and publication notices. Mr. Johnson's letter also states as follows in relevant part: This letter will also confirm your statement to Gary Volenac, P.E., that the form of the Notice of Application for the renewal of the permit previously submitted by the Department to Mr. Wilder by letter dated October 11, 2000, is acceptable with the exception of substituting Resort Village Utility, Inc. for SGI Utility, Inc. On November 23, 2000, the Notice of Application was published in the Apalachicola Times. The notice stated that DEP announced receipt of an application from David E. Wilder for RVU to obtain a renewal of the Permit. In a letter dated December 1, 2000, DEP advised SGI Utility, LLC, that it had been 52 days since SGI Utility, LLC, had been notified of deficiencies in the Permit renewal application. DEP reminded SGI Utility, LLC, that failure to supply the requested information might result in permit denial. Petitioner wrote DEP a letter dated December 4, 2000. Petitioner was concerned that the newspaper announcement named RVU as the applicant for renewal of the Permit instead of SGI Utility, LLC. Petitioner also noted that RVU had created a small lake on the property close to the AWT facility's largest absorption bed. Petitioner was concerned that flooding after heavy rains in the absorption bed area, together with the addition of the small lake, would present a threat of pollution to Apalachicola Bay. By letter dated December 6, 2000, SGI Utility, LLC, furnished DEP with a copy of the Notice of Application that was published in the Apalachicola Times on November 23, 2000. On January 18, 2001, DEP representatives (Joe May and Dave Krieger) met with Petitioner and an employee of SGI Utility, LLC (Morris Palmer), at the site of the AWT facility. The purpose of the visit was to conduct a routine inspection in response to the Permit renewal application and to address Petitioner's concerns. At the time of the inspection, construction of the wastewater treatment plant had not commenced. Two of the absorption beds had been installed. The third absorption bed had been flagged for construction. During the meeting on January 18, 2001, Mr. May noted that there could be a concern with rainfall run-on for one of the absorption beds. Mr. May suggested the creation of a berm at the entrance to the bed along the adjacent road to prevent rainfall run-on. Mr. May concluded that implementation of the approved stormwater plan would redirect rainfall run-off from the road. Mr. May also suggested the creation of a berm for another absorption bed. A berm between dunes adjacent to that bed would prevent run-on to the bed from high tide. During the meeting, Mr. May and Petitioner discussed the impact of heavy rainfall from a tropical storm in October 1996. The storm flooded isolated areas on St. George Island, including areas in the subject development. The isolated flooding lasted for several days. However, persuasive evidence received at final hearing indicates that the 1996 storm did not cause prolonged flooding, if any, in the absorption cells. Similar concerns about flooding in the absorption cells were addressed in the original permit. The absorption cells have been designed to ensure protection to the facility in the event of a large storm. The creation of the berms recommended by Mr. May will provide additional protection from run-on resulting from heavy rainfall. After the meeting on January 18, 2001, Morris Palmer constructed all of the berms as suggested by Mr. May. During the site visit on January 18, 2001, Mr. May and Petitioner discussed the impact of a small lake or pond created by RVU in the development after issuance of the original permit. The pond is the only change to the 58-acre development that was not contemplated prior to the issuance of the original permit. The pond is more like an isolated ditch that RVU excavated below groundwater level. RVU used the sand from the ditch to elevate the ground surface in the absorption beds and for other purposes. The pond is located approximately 527 feet from the AWT plant and 478 feet from the nearest absorption bed associated with the plant. Surface water drainage, if any, from the three absorption beds is away from the pond. Persuasive evidence indicates that the pond will not interfere with the AWT facility once it begins operation. Additionally, there is no credible evidence that possible flooding in the absorption beds will cause contaminates to collect in the pond and eventually result in a discharge of pollutants to Apalachicola Bay. Petitioner presented some evidence that the pond might act as a collection point for pollution from sources such as cars, animals, and other above-ground sources. However, the greater weight of the evidence indicates that excavation of the pond will have no impact on the results of groundwater flow modeling and contaminants transport modeling introduced at the prior hearing in DOAH Case No. 95-0863. DEP appropriately referred Petitioner's other concerns about the pond to DEP's Submerged Lands and Environmental Resources Program. Neither the original permit nor the instant Permit requires an anti-degradation study. Such studies are required only in cases involving a direct discharge to surface waters. In this case, the AWT facility will not result in a surface water discharge. During the meeting on January 18, 2001, Mr. May acknowledged that ambient monitoring data showed elevated levels of hydrocarbons and nutrients. The elevated hydrocarbons may be caused by traffic on the road and at the airport located near the absorption beds. The elevated nutrient levels can only be attributed to animals. As stated above, the AWT facility is not operational; therefore, the elevated levels of hydrocarbons and nutrients are not the result of the AWT facility. On March 30, 2001, DEP issued its Notice of Intent to Issue the Permit to RVU. The Intent to Issue indicates that RVU is the applicant for an application filed by SGI Utility, LLC, and RVU. The Permit lists RVU and SGI Utility, LLC, as co- permittees. If PSC approves the transfer of RVU's certificate to SGI Utility, LLC, DEP will transfer the Permit to SGI Utility, LLC. Until then, DEP will issue the Permit in the name of both entities. The Permit sets forth requirements for continued ambient and groundwater monitoring. These requirements, like the ones in the original permit, are sufficient to provide reasonable assurances that operation of the AWT facility will comply with Chapter 62-620, Florida Administrative Code. Under cover of a letter dated May 22, 2001, Mr. Wilder provided DEP with proof that the Notice of Intent to Issue had been published in the Apalachicola Times on April 12, 2001. Mr. Wilder signed the letter as treasurer of RVU. The published notice indicates that DEP intends to issue the Permit to RVU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That DEP enter a final order granting RVU and SGI Utility, LLC, a renewal of Permit No. FLA010069-002. DONE AND ENTERED this 28th day of February, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 28th day of February, 2002. COPIES FURNISHED: Thomas H. Adams Post Office Box 791 Eastpoint, Florida 32328 Craig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 L. Lee Williams, Jr., Esquire Williams, Gautier, Gwynn & DeLoach, P.A. 2010 Delta Boulevard Post Office Box 4128 Tallahassee, Florida 32315-4128 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the Respondent committed the violations alleged in the administrative complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating construction industry licensees. Such authority includes, but is not limited to, the discipline of air conditioning contractors in the State of Florida. At all times material to this case, Respondent, Jose R. Gonzalez, was a certified air conditioning contractor, license number CA C035486. According to licensing records, Respondent does business as Rainbow Mechanical, Inc. Neither Nelson Rodriguez nor N.V. Air and Appliance Corporation is licensed in Florida as a state-certified or state- registered contractor. Neither has been approved by Miami-Dade County to perform contracting services. Neither Hector Salvador nor Electro Mundo Corporation is licensed in Florida as a state-certified or state-registered contractor. Neither has been approved by Miami-Dade County to perform contracting services. In September of 1995, an electrical surge caused extensive damage to a home located at 2342 Southwest 128th Avenue, Miami, Dade County, Florida. As a result of the surge, the air conditioning units and all electrical appliances were damaged. The condenser for the central air conditioning system had to be replaced. Michael Rodriguez, the son of the property's owner who resided at the home, sought assistance from the insurance carrier, Allstate. He notified Allstate of the damages and expected an adjuster would come to assess the repairs. Instead, one early morning in late September or early October 1995, Michael Rodriguez was awakened by Nelson Rodriguez who was removing the air conditioning condenser. When Michael Rodriguez questioned the activity (he had not heard back from Allstate), Nelson Rodriguez referred him to Hector Salvador. Mr. Salvador arrived at the property a short while later and advised Michael Rodriguez that he (doing business as Electro Mundo Corporation) had been retained by Allstate to do the work. Thereafter, Salvador and Nelson Rodriguez were given access to the property on numerous occasions to correct the electrical problems. Michael Rodriguez became suspicious of their work when nothing seemed to work better after repairs. He became so concerned as to the quality of the work that he began to make inquiries to building officials. Eventually, Michael Rodriguez discovered a permit had not been pulled for the work. Later he determined that Nelson Rodriguez and Salvador were not licensed. Meanwhile, Salvador contacted Respondent and asked him to pull a permit for the job. Respondent considered himself a subcontractor to Electro Mundo. At the time the Respondent applied for the permit for the air conditioning work at the homeowner's residence, Respondent knew that the work he described in the permit application (replacement of the condenser) had already been performed by an unlicensed contractor, without a permit. On or about August 21, 1996, Respondent completed a permit application for the subject home. Such application identified Rainbow Mechanical as the contractor and described the work as "replaced condenser." The permit did not address the other numerous electrical repairs needed. Respondent did not replace the condenser at the subject home. That work had been performed by Electro Mundo or Nelson Rodriguez. Respondent's involvement at the home consisted of pulling the permit, calling for an inspection, correction of a cable problem identified by the inspector, and calling for a re- inspection which passed. Respondent never talked personally to the property owner or the son. Respondent never had a written contract with anyone to perform the work. Respondent maintains that Electro Mundo reimbursed him for the permit fees but did not pay him for any service for the job. Electro Mundo was not approved or authorized by Allstate to make the electrical repairs to the subject home. Electro Mundo is not on Allstate's quality vendor list. The property owner never contracted with Electro Mundo to perform electrical services at the property but permitted access to the property based upon the direction of an individual named Maria Torres who represented Allstate had dispatched Salvador to the job. Although factually not similar to the violation alleged in this matter, Respondent was previously disciplined by the Construction Industry Licensing Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order imposing an administrative fine in the amount of $1,500, suspending Respondent's license for a period of sixty days, imposing a probationary period thereafter, and awarding costs of prosecution. DONE AND ENTERED this 22nd day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 22nd day of March, 1999. COPIES FURNISHED: Rodney Hurst, Executive Director Department of Business and Professional Regulation Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorota Trzeciecka, Esquire Department of Business and Professional Regulation Construction Industry Licensing Board 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 Josefina Perez-Cofino, Esquire 7860 Northwest 71 Street, Suite 302 Miami, Florida 33166
The Issue The issue to be determined by this Order is whether the Petition for Formal Proceedings filed with the Department of Environmental Protection (DEP) on February 4, 2009, was timely 1/ and, if so, whether Petitioners have standing to challenge the DEP?s issuance of the Minor Modification to FDEP Operation Permit 171331-002-UO for IW-1 under 171331-003-UC (the Permit Modification).
Findings Of Fact The Parties The Conservation Alliance is a Florida not-for-profit corporation in good-standing, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. The Conservation Alliance has approximately 200 members. Elaine Romano is a resident of St. Lucie County, Florida. The DEP is an agency of the State of Florida having jurisdiction for permitting UIC facilities and the waste-streams being discharged to such facilities, pursuant to chapter 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP issued the Permit Modification that is the subject of this proceeding. FPUA provides utility service to the City of Fort Pierce, Florida. FPUA owns and operates a Class I industrial injection well (IW-1), discharges to which are the subject of the Permit Modification. Allied owns and operates a chlorine bleach manufacturing facility which produces a brine waste-stream that is proposed for disposal to IW-1. Issuance of the Permit Modification On December 19, 2008, the DEP issued a Notice of Permit, Permit Number 171331-002-UO (FPUA operation permit), which authorized the operation of IW-1 at the Gahn wastewater treatment plant. The Gahn wastewater treatment plant and IW-1 are owned and operated by the FPUA. The FPUA operation permit authorized the disposal of concentrate and water treatment by- product from FPUA?s reverse-osmosis water facility at a permitted rate of 2.8 million gallons per day. FPUA also owns and operates water production wells that serve the City of Fort Pierce potable water supply system. IW-1 was constructed within 500 feet of three of the FPUA production wells, which required FPUA to obtain a variance from setback requirements. On July 17, 2008, prior to the issuance of the FPUA operation permit, Allied submitted an application for a major modification of the FPUA operation permit. The application proposed the disposal to IW-1 of up to 21,600 gallons per day of a brine waste-stream that is a by-product of the production of chlorine bleach. The application cover letter provides that “[w]hile we have been notified that this project is only a Minor Permit Modification, we feel by submitting for a Major Permit Modification that the Department will have the ability to review the application and downgrade the application to a Minor Permit Modification, if needed.” On December 30, 2008, the DEP issued the Permit Modification as a minor modification of the FPUA operation permit. The Permit Modification allowed a maximum of 21,600 gallons of brine to be received at the FPUA facility and disposed of in IW-1. Notice of the Permit Modification On or about September 12, 2008, a paralegal for Ruden McClosky, Lucinda Sparkman, requested information from the DEP regarding the procedure for receiving notification of permit applications and DEP action thereon. Her request was subsequently refined to request notice regarding two permits, those being “injection Well Construction, application #171331- 003,” and the other being “Water-Industrial Wastewater, application #FLA017460-004.” DEP File No. 171331-003 is that pertaining to the Permit Modification. At the time of the request, Ruden McClosky represented Odyssey Manufacturing Company (Odyssey), an economic competitor of Allied.3/ On September 24, 2008, Ms. Sparkman asked to be “put on the distribution list for the URIC permit for Fort Pierce.” From September 24, 2008 through December 15, 2008, Ms. Sparkman made periodic requests for information, and received periodic updates from the DEP. On December 19, 2008, the DEP sent Ms. Sparkman an e- mail indicating that the FPUA operation permit had been issued, and later that same day sent Ms. Sparkman an electronic copy of the permit. On December 19, 2008, Ruden McClosky made a public records request to FPUA for, among other items, records pertaining to the disposal of brine to the Gahn Water Plant underground injection well, and any agreements between FPUA and Allied regarding the disposal of brine. The request was made on behalf of Florida Tire Recycling, Inc. (Florida Tire). On December 22, the DEP sent Ms. Sparkman a copy of the notice of intent for the FPUA operation permit. There is no record evidence of further communication or inquiry between Ruden McClosky and the DEP from December 22, 2008 to January 14, 2009. On January 9, 2009, notice of the Permit Modification was published in the Fort Pierce Tribune. The notice was prepared and publication arranged by counsel for Allied. The published notice provides the information required by rule 62-110.106(7)(d), and stated that any challenge to the Permit Modification was required to be received by DEP within 14 days of publication or, for persons that requested actual notice, within 14 days of receipt of such actual notice. On January 14, 2009, Ms. Sparkman called her contact person at the DEP to inquire about the Permit Modification. That call was not returned. On January 21, 2009, Ms. Sparkman again called the DEP to inquire about the Permit Modification. In response to Ms. Sparkman?s inquiry, the DEP sent Ms. Sparkman an electronic copy of the Permit Modification. Ms. Sparkman made further inquiry on January 21, 2009, as to whether the notice of the Permit Modification had been published in a newspaper. On January 22, 2009, the DEP replied that “[e]verything was noticed as required.” On January 22, 2009, the Fort Pierce Tribune prepared an affidavit of publication of the notice. The affidavit of publication was received by counsel for Allied on January 28, 2009, who sent the affidavit to the DEP by certified mail on January 29, 2009. Alleged Defects in the Notice of Permit Modification Petitioners have alleged a number of procedural defects that they contend render the published notice ineffective to establish a deadline of 14 days from the date of the notice to file a challenge to the Permit Modification. Late Proof of Publication Petitioners allege that Allied filed the proof of publication with the DEP more than seven days from the date of publication, and that delay made such publication ineffective to establish a deadline for filing the petition. Although the proof of publication was provided to the DEP on or shortly after January 29, 2009, the evidence demonstrates that Allied provided the proof of publication to the DEP immediately upon receipt from the Fort Pierce Tribune newspaper. The delay in filing was not within the control of Allied, or anyone else associated with the Permit Modification. As established by rule 62-110.106(9), proof of publication is required by the DEP to provide assurance to the DEP that required notice has, in fact, been published, with the sanction being the delay or denial of the permit. The rule does not suggest that a delay in providing proof of publication to the DEP serves to alter or extend the time for filing a petition. There is little case law construing the effect of a delay in providing proof of publication on the petition rights of a person challenging the proposed agency action. However, the undersigned agrees with, and adopts, the following analysis of the issue provided by Administrative Law Judge P. Michael Ruff: . . . the purpose of requiring an applicant to publish notice of agency action is to give substantially affected persons an opportunity to participate in an administrative proceeding. See Section 403.815, Florida Statutes, and Rule 17- 103.150(4), Florida Administrative Code. Consequently, the crucial element in the Department's publication requirement is that the notice be published to trigger the commencement of the time for affected persons to request a hearing. The requirement that proof of publication be provided to the Department does nothing to affect the rights of third parties, but merely is a technical requirement which allows the Department to determine whether a third party has timely exercised its rights to contest a published notice of intended agency action. If an applicant publishes notice of intended agency action, but fails to timely provide the Department with proof of that publication, the deficiency is one which is easily cured. No harm will occur because the permit will not be issued until proof of publication is received by the Department, in any event, because of Rule 17-103.510(4), Florida Administrative Code. Bio-Tech Tracking Systems, Inc. v. Dep?t of Envtl. Reg., Case No. 90-7760, ¶32 (Fla. DOAH Apr. 3, 1991; Fla. DER May 17, 1991). The filing of the notice beyond the seven-day period in rule 62-110.106(5) was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Notice Prepared by Counsel Petitioners allege that the notice was prepared by Allied?s counsel, rather than the DEP, and that the notice was therefore ineffective to establish a deadline for filing the petition. Publication of the notice of the Permit Modification was not required, since it was a minor modification. Thus, publication was at Allied?s option. Rule 62-110.106(10)(a) provides, in pertinent part, that: Any applicant or person benefiting from the Department?s action may elect to publish notice of the Department?s intended or proposed action . . . in the manner provided by subsection (7) or (8) above. Upon presentation of proof of publication to the Department before final agency action, any person who has elected to publish such notice shall be entitled to the same benefits under this rule as a person who is required to publish notice. The most logical construction of rule 62-110.106 is that the DEP is responsible for preparing required notices pursuant to rule 62-110.106(7)(c), but that non-required notices may be prepared and published at the applicant?s or beneficiary?s option without direct DEP involvement. In this case, the notice was prepared by an authorized agent of the corporate “person” that benefitted from the Permit Modification. The more salient point regarding the preparation of the notice is whether it contained all of the information required by rule. The evidence demonstrates that it did, and that the notice was sufficient to provide a meaningful and complete point of entry to the public of the Permit Modification and the rights attendant thereto. The fact that the notice was prepared by Allied?s counsel was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Lack of Actual Notice Petitioners allege error in the notice process because actual notice of the Permit Modification was not provided to Petitioners. The basis for the alleged deficiency was that Mr. Stinnette had, in 2003, asked to be placed on the DEP?s UIC mailing list, but did not receive the notice of the Permit Modification. Rule 62-110.106(2) provides that published notice establishes the point of entry for the public to challenge proposed agency action “except for persons entitled to written notice personally or by mail under Section 120.60(3), Florida Statutes, or any other statute.” Section 120.60(3) provides that a notice of proposed agency action shall be mailed “to each person who has made a written request for notice of agency action.” The preponderance of the evidence demonstrates that Mr. Stinnette was acting solely as an agent of Indian Riverkeeper when he requested to be placed on the UIC mailing list. He was not requesting notices in his personal capacity, or as an agent of the Conservation Alliance or Ms. Romano. Thus, Indian Riverkeeper was entitled to notice of the Permit Modification. Indian Riverkeeper is not a party to this proceeding. The undersigned is not willing to attribute a request for actual notice to any person other than the person requesting such notice. The DEP?s failure to provide written notice of the Permit Modification to Indian Riverkeeper did not adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, and does not affect the fairness of this proceeding. Lack of Information Pursuant to Rule 62-528.315(7) Finally, Petitioners argue that the published notice was ineffective because it did not include the name, address, and telephone number of a DEP contact person, citing rule 62- 528.315(7)(d). The provision cited by Petitioners involves DEP notices that are required when the DEP has prepared a draft permit, draft consent order, or has scheduled a public meeting as identified in rule 62-528.315(1). The notice requirement in rule 62-528.315(7) does not apply to a notice of proposed agency action, which is governed by rule 62-528.315(10), and which provides that: “[a]fter the conclusion of the public comment period described in Rule 62-528.321, F.A.C., and after the conclusion of a public meeting (if any) described in Rule 62- 528.325, F.A.C., the applicant shall publish public notice of the proposed agency action including the availability of an administrative hearing under Sections 120.569 and 120.57, F.S. This public notice shall follow the procedure described in subsection 62-110.106(7), F.A.C. (emphasis added). The published notice of the Permit Modification was consistent with the notice described in rule 62-110.106(7), and therefore complied with rule 62-528.315(10). For the reasons set forth herein, there were no defects in the published notice of proposed agency action that serve to minimize the effect of that published notice on the time for filing a petition challenging the Permit Modification, that adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, or that affect the fairness of this proceeding. Representation of Petitioners by Ruden McClosky Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding FPUA. Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding Allied. The parties stipulated that an attorney-client relationship was formed between the Petitioners and Ruden McClosky on or after January 1, 2009. No further specificity was stipulated. On February 3, 2009, Ruden McClosky sent an engagement letter to the Conservation Alliance regarding governmental and administrative challenges to the Permit Modification. The engagement was accepted by Mr. Stinnette on behalf of the Conservation Alliance on February 4, 2009. The Petition for Formal Proceedings, which named the Conservation Alliance as a party, was filed with the DEP on February 4, 2009. On February 10, 2009, Ruden McClosky sent an engagement letter to Ms. Romano regarding governmental and administrative challenges to the Permit Modification. There is no evidence that the engagement was accepted by Ms. Romano. Ms. Romano testified that she has never spoken or corresponded with anyone from Ruden McClosky, and had no knowledge that she was being represented by Ruden McClosky. Ms. Romano had no input in drafting any of the petitions filed on her behalf, and had no recollection of having ever read the petitions. The Amended Petition for Formal Proceedings, which named Ms. Romano as a party, was filed with the DEP on February 12, 2009. Both of the Ruden McClosky engagement letters reference an “Other Client” that had an interest in challenging the Permit Modification, which “Other Client” would be responsible for paying all fees and costs, and would be involved in the approval of all work performed by Ruden McClosky. The parties stipulated that the “Other Client” was Odyssey. The date of an engagement letter is not dispositive as to the date on which an attorney-client relationship is established. It is, however, evidence that can be assessed with other evidence to draw a conclusion as to the date that the relationship commenced. The preponderance of the evidence demonstrates that requests for notice made prior to January 21, 2009, regarding the FPUA operation permit and the Permit Modification that is the subject of this proceeding were made on behalf of Odyssey or Florida Tire, existing clients of Ruden McClosky. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of the Conservation Alliance with regard to the instant case no earlier than January 21, 2009, the date on which Ruden McClosky received notice that the Permit Modification had been issued. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of Ms. Romano with regard to the instant case after January 21, 2009, if at all. Filing of the Petitions The 14th day after publication of the notice of the Permit Modification fell on January 23, 2009. On February 4, 2009, the initial Petition for Formal Proceedings was filed challenging the DEP issuance of the Permit Modification. The Petition named the Conservation Alliance as a party. On February 12, 2009, an Amended Petition for Formal Proceedings was filed that, among other things, added Ms. Romano as a party. Allegations of Standing - Conservation Alliance The Conservation Alliance is a non-profit, Florida corporation incorporated in 1985. It has at least 100 members that reside in St. Lucie County. It was formed for the general purpose of protecting the “water, soil, air, native flora and fauna,” and thus the environment of St. Lucie County. In the Petition for Formal Proceedings, as it has been amended, the Conservation Alliance made specific allegations as to how the issuance of the Permit Modification may affect its substantial interests. Those allegations are related, first, to the effect of the Permit Modification on the FPUA public water supply that serves members of the Conservation Alliance and, second, to the effect of the Permit Modification on the ability of the members to recreate and enjoy the waters of St. Lucie County. FPUA Water Service In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “[m]embers of the Alliance own real property or otherwise reside within the service area of FPUA, and are, in fact, serviced by FPUA.” As a result, the members “will be adversely affected by the injection of the Allied waste stream into IW-1, which is located within 500 feet of three potable water supply sources, from which . . . Romano and the Alliance?s members are provided with potable water,” resulting in “a potential for those contaminants and hazardous materials to get into Petitioners? source of potable water.” Mr. Brady, the Conservation Alliance?s president, does not receive water service from the FPUA. Mr. Brady did not know how many members of the Conservation Alliance received water service from the FPUA. Persons living in unincorporated areas of Fort Pierce do not receive potable water from the FPUA. A mailing address of “Fort Pierce” does not mean that the person lives in the incorporated City of Fort Pierce. Mr. Brady “assumed” many of the members lived in the City of Fort Pierce, but offered no admissible, non-hearsay evidence of any kind to support that assumption. Mr. Stinnette testified that he was “confident that we have members that receive water from [FPUA]” but was not able to quantify the number of said members. As with Mr. Brady, Mr. Stinnette offered no admissible, non-hearsay evidence of any kind to support his belief. Recreational and Environmental Interests In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “. . . Romano and the Alliance?s members utilize and protect the waters of St. Lucie County. Petitioners? recreational and environmental interests will be adversely affected if the Allied waste stream leaves the injection well area and flows into the rivers, streams, and or ocean.” Mr. Brady understood that one member of the Conservation Alliance, George Jones, fished in the C-24 canal, although Mr. Brady had not personally fished there for 25 years. Mr. Brady otherwise provided no evidence of the extent to which members used or enjoyed the waters in or around St. Lucie County. Mr. Stinnette has recreated in various water bodies that are tributaries of the Indian River Lagoon system. He indicated that he had engaged in recreational activities in and on the waters of St. Lucie County with “dozens” of people over the past 16 years, some of whom were members of the Conservation Alliance. There was no evidence offered as to how many of those persons were members of the Conservation Alliance, as opposed to members of other organizations or of no organization at all, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones said that he kayaked in the waters of St. Lucie County but, as to the recreational activities of other members, testified that “I don't know, I don't keep up with their day-to-day activities to that extent.” Although Mr. Jones testified at the hearing, he provided no information as to the nature or extent of his recreational uses of the waters of St. Lucie County. The only evidence of Mr. Jones? use of the waters of St. Lucie County is hearsay. Thus, the only finding that can be made as to the recreational use of the waters of St. Lucie County by current members of the Conservation Alliance is limited to the recreational use by a single member, Mr. Stinnette. Petitioner, Elaine Romano Ms. Romano is a member of the Conservation Alliance. The allegations regarding Ms. Romano?s substantial interests in this proceeding were the same as those of the Conservation Alliance as set forth above. FPUA Water Service Ms. Romano has her primary residence at 3436 Roselawn Boulevard, Fort Pierce, Florida. Her residence is not served by FPUA. Ms. Romano is the executor of the estate of her mother, Marion Scherer. The estate owns a residence at 1903 Royal Palm Drive, Fort Pierce, Florida that is currently vacant. That residence is served by FPUA. The estate is not a party to this proceeding. Recreational and Environmental Interests Ms. Romano attends certain meetings and functions of the Conservation Alliance, but offered no testimony of her use or enjoyment of any natural resources that could be affected by the Permit Modification. In that regard, her interest in this case was precipitated by a desire to support her mother?s interest in ecology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Environmental Protection, enter a final order dismissing the Petition for Formal Proceeding as amended. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2013.
The Issue The issues in this case are whether each of the two respondents practiced contracting and electrical contracting without a license in violation of Subsections 489.113(2), 489.127(1)(f), 489.531(1), Florida Statutes (2004),1 and, if so, what penalty, if any, should be imposed pursuant to Subsections 455.228(1) and 489.13(3).
Findings Of Fact Petitioner is the state agency defined in Subsection 489.105(2) that is responsible for regulating the practice of contracting and electrical contracting pursuant to Subsection 455.228(1). Neither of the respondents has ever been licensed as either a contractor or an electrical contractor. On April 14, 2005, Mr. Adams and Bay Breeze Maintenance, LLC (Bay Breeze), practiced contracting and electrical contracting within the meaning of Subsections 489.105(3) and (6) and 489.505(9) and (12). Mr. Adams, as agent for Bay Breeze, submitted to Mr. Christopher King, as agent for Dome Flea Market in Venice, Florida, a written proposal to remodel part of the Dome Flea Market for a cost not to exceed $60,000. The proposed remodeling involved an upgrade of a snack bar into a grill and bar to be known as the Sawmill Grill. In relevant part, the proposed remodeling required performance of plumbing, carpentry, and electrical contracting, including the installation of electrical wiring and electrical fixtures. Between April 14 and May 20, 2005, Mr. King paid approximately $39,350 to the respondents for the proposed remodeling job. On April 14, 2005, Mr. King paid $8,000 and $1,500 by respective check numbers 7725 and 7726. On April 19, 2005, Mr. King paid $8,000 and $1,700 by respective check numbers 7730 and 7731. On May 3 and 20, 2005, Mr. King paid $5,150 and $14,000 by respective check numbers 7742 and 7770. The respondents never actually performed any remodeling work. Mr. Adams testified that Mr. King forged the written proposal and that neither Mr. Adams nor Bay Breeze submitted a proposal for the remodeling project. That testimony was neither credible nor persuasive. The financial harm to the public was substantial. Mr. Adams and Bay Breeze have not paid any restitution. Petitioner incurred investigative costs, excluding attorney fees and costs, in the amount of $844.07. The investigative costs are reasonable within the meaning of Subsection 489.13(3).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Mr. Adams and Bay Breeze guilty of committing the violations alleged in each Amended Administrative Complaint and imposing an aggregate administrative fine against Mr. Adams and Bay Breeze, collectively, in the amount of $10,000. DONE AND ENTERED this 12th day of March, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 12th day of March, 2007.
Findings Of Fact On January 23, 1985, following the filing of the and its on-site inspection, DER issued its notice of intent to grant the air construction permit, pursuant to Chapter 403, Florida Statutes (F.S.), and Chapters 17-2 and 17-4, Florida Administrative Code (F.A.C.). The notice stated that the proposed equipment, with a cyclone primary dust collector followed by a Dustex Baghouse Model DW-14-28W dust collector, was adequate to insure compliance with DER particulate emission standards. The ambient air standards for sulfur dioxide emissions by the plant were to be controlled by the use of low sulfur fuel oil (maximum 0.5 percent sulfur). Subsequent to the issuance of the notice of intent, DER received a Petition for Administrative Hearing regarding the issuance of the permit. The petition alleged, inter alia, that the plant would emit particulates and gases in contravention of Chapter 17-2, F.A.C., and that stormwater run-off from the plant would be contaminated with oil, scum and debris. The petition further asserted that this run-off would cause water pollution in contravention of Chapters 17-3 and 17-25, F.A.C., and would introduce pollution into Dry Branch and Bayou George, a Class I Water. The permit application covers only the proposed batch plant site and the immediately adjacent property consisting of 2.15 acres. The location of the building would be at the northern end of the parcel, approximately 0.10 miles from both Star Avenue and U.S. Highway 231. There is no residential use of property immediately adjacent to the project site. However, Petitioners all reside in the immediate area, and will be affected to some extent by this facility. Dust from construction activity has already been experienced. In this regard, it must be recognized that the area has no zoning restrictions and is therefore subject to industrial uses such as that proposed here. The Applicant owns several acres of property surrounding the location of the proposed batch plant. The permit application at issue covers only the request to construct the facility on a 2.15 acre portion of the larger parcel. Anticipated environmental problems caused by activity not on the immediate parcel are not related to this permit application and thus are not germane to a determination whether the permit should be issued or denied. Further, the construction permit will only allow the applicant to build the proposed air pollution source. Before such a source can actually be operated, a separate operation permit application must be made, and testing for compliance with standards by the facility must be satisfactorily completed. Petitioners demonstrated that the individuals who own Triangle Construction Company, Inc. were previously employed by Gulf Asphalt Company, which was occasionally out of compliance with state air emission standards. Petitioners asserted that these individuals would likely fail to operate the proposed facility in compliance with DER standards. Although these individuals did have managerial responsibility at Gulf Asphalt, final decisions concerning financial expenditures for repairs and maintenance were made by the owner of the plant, rather than the Applicant's owners. It was also established that the Gulf Asphalt Plant continued to have emission problems after such individuals left as employees. Petitioners contend the Applicant's unrelated dredging activities in an adjacent borrow pit area caused turbidity in Dry Branch Creek, and characterized the Applicant as a habitual violator who could not be expected to comply with state pollution control regulations in the operation of the proposed facility. Testimony revealed that the Applicant constructed a culvert in Dry Branch, which flows through a borrow pit area and did some other incidental dredging in areas within the landward extent of waters of the state. However, when the Applicant became aware that activities in the proposed borrow pit area were potentially in violation of DER rules, it ceased activities and applied for the appropriate permits. An asphalt concrete batch plant is a relatively simple operation in which sand and aggregate are dried, then mixed with hot liquid asphalt and loaded directly into trucks. It is the drying process which emits the particulates which the cyclone and the baghouse are designed to control. Baghouse operations are similar to those of a vacuum cleaner. Particulate-laden air from the drying process is vented into the baghouse, where it is filtered through a number of cloth bags. The bags trap the particulates, and pass the filtered air through the bag cloth and out of the building. When enough air has been filtered to cause a build-up of trapped particulates, a portion of the baghouse is taken off cycle and reverse air is blown through the bags. The reverse air causes the trapped particulates to fall into a hopper where they are removed for disposal. The baghouse was designed to function efficiently in conjunction with a plant producing up to 120 tons per hour of asphalt concrete. Applicants's plant will produce only 80-85 tons of asphalt concrete per hour due to the limited size of the dryer. The estimated air to cloth ratio in the amended permit application is 6:1, which will result in emissions substantially lower than DER standards. Air to cloth ratio is not a specific standard or requirement, but is a figure which is used by engineers to determine projected emissions which may reasonably be anticipated from facilities which use an air pollution control mechanism. A projected air to cloth ratio of 6:1 for this baghouse may be reasonably expected to yield emissions of approximately 0.014 micrograms per dry cubic foot, which is approximately one-third of the DER standard of 0.04 mg. per dry cubic foot. The equipment to be installed is used and in need of minor repairs. The testimony established that necessary repairs will be accomplished prior to plant activation, and that operations will not be adversely affected when such repairs are complete.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a final order granting Triangle Construction Company an air construction permit. DONE and ENTERED this 21st day of June, 1985, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1985. COPIES FURNISHED: Lynn C. Higby, Esquire BRYANT, HIGBY & WILLIAMS, P.A. Post Office Box 124 Panama City, Florida 32402 E. Gary Early, Esquire and Clare E. Gray, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Richard Smoak, Esquire SALE, BROWN & SMOAK Post Office Box 1579 Panama City, Florida 32402 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulations of fact entered into by the parties prior to the hearing, the following relevant facts are found: Petitioner Manasota-88, Inc., is a nonprofit corporation organized for the protection of the environment and has members who are residents of Manatee County. This organization filed a timely petition for hearing on the subject November 19, 1980, and January 1981 permit revisions. The intervenor Manatee Energy Company is the owner and operator of a crude oil splitter located in Port Manatee, Manatee County, Florida. This facility is a potential source of air pollutants, received a construction permit in 1978, and is permitted to operate under Permit Number A041-26555 issued by the DER in March of 1980. The intervenor's application to obtain a construction permit indicated a total process input rate of 15,000 to 22,000 barrels per day of crude oil. The splitter was to be fueled by either liquid petroleum gas or fuel oil with a sulfur content of 0.7 percent weight or less. The type of crude oil to be processed was not specified. The application further specified that the maximum heat input rate would be 70 million BTU/hr, and that the normal operating time would be 350 days per year, seven days per week and 24 hours per day. DER's Permit Number A041-26555, which authorized the operation of the crude oil splitter, described the facility as follows: ". . .a Crude Oil Splitter (15,000 BPSD) to separate crude oil by distillation into jet fuel (JP4 and/or Jet A), diesel fuel, and Bunker C. This permit includes the furnaces, boiler, burnoff flare, and storage tanks under the supervision of Manatee Energy. Combustion devices to be fired with LPG or fuel oil with a sulfur content of 0.7 percent or less. Facility located at Port Manatee." This permit also included specific conditions limiting particulate and sulfur dioxide emissions in terms of an amount of emissions per unit of heat input into the furnace and boiler. Because the crude oil splitter operates as a closed system, the heat input to the combustion units--the furnace and boiler-- determines the level of emissions from those sources. During the application and original permit process, Manatee Energy Company did not know the precise quality or grade of crude oil which would be utilized. In the early course of operations, it was discovered that considerably larger volumes of input (as much as 28,000 barrels per day), if processed at the normal design heat input rate, would not result in atmospheric emissions which violated the original permit conditions. For this reason, Manatee Energy Company, by letter dated October 22, 1980, and supplemented by letter dated October 29, 1980, sought a "clarification" in the conditions pertaining to its operating permit. In effect, Manatee Energy Company wanted to know if the original permit allowed a product input of greater than 15,000 barrels per day if other limitations on emissions from the furnace and boiler would not be violated. In support of its request for clarification, Manatee Energy Company submitted data regarding results from emission tests. The information submitted was not on a DER application form and did not include the certification of a professional engineer registered in the State of Florida, DER has subsequently received a letter dated November 22, 1982, from a Florida registered engineer certifying that the data submitted by Manatee Energy Company on October 22 and 29, 1980, was in conformity with sound engineering principles and offering the opinion that current permit conditions would not be violated by the facts submitted. DER responded to the October 22 and 29, 1980, letters from Manatee Energy Company by issuing a revised operating permit on November 10, 1980. This revised permit deleted the prior restriction on product input rate (15,000 barrels per day) contained in the project description and added a specific condition restricting the maximum heat input to the crude oil furnace to 55 million BTU per hour and to the boiler to 15 million BTU per hour. The permit revision issued by DER on November 10, 1980, did not allow a change in the physical premises of the plant, a change in the sulfur content of the fuel, or a change in the amount of heat input to the plant. Consequently, Manatee Energy Company did not request, and the revision did not allow, any additional atmospheric emissions, nor did it allow any increase in emissions which would exceed the limitations imposed in the original operating permit. An increase in the rate at which raw material is processed does not result in an increase in emissions. A cap on the amount of heat input also caps the amounts of emission. Stated differently, if the combustion of the fuel is being held constant by a limitation on the amount of allowable heat input, there will be no increase in emission regardless of the product input rate. The main effect of an increase in product input is on storage. The furnace and the boiler burn the same fuel. Further operating experience revealed that the boiler did not require 15 million BTU of heat input to perform its function, but only required 5 or 6 million BTU depending on the type of oil or other circumstances, such as wind. Manatee Energy Company therefore sought another clarification of the conditions of its operating permit as to the need to have separate allocations of heat input to the furnace and the boiler. In response to this request, DER, by letter dated January 19, 1981, changed the permit conditions by restricting the combined heat input to the furnace and boiler to 70 million BTU per hour, and removing the separate allocations of 55 million BTU/hr for the furnace and 15 million BTU/hr for the boiler. No changes were made to the emissions or the quality of fuel authorized under the original permit. This revision was not preceded by a permit application on a DER form certified by a professional engineer registered in the State of Florida. The level of emission from the furnace and boiler at the heat input capacity of 55 million BTU per hour and 15 million BTU per hour, respectively, would be the same as the level of emission from the furnace and boiler at the combined heat input capacity of 70 million BTU per hour. Therefore, the January 1981 permit revision did not allow emissions in excess of that allowed by the November 1980 permit revision. The 70 million BTU per hour heat input rate to the furnace and boiler specified in the two challenged revisions is the same as that indicated in the construction application submitted by Manatee Energy Company for the crude oil splitter. There being no increases in allowable heat input to the furnace and boiler, there is no increase in pollutant emissions from the two sources. By letter dated July 1, 1982, Manatee Energy Company requested that the storage tanks be deleted from Permit Number A041-26555 for the reason that it no longer contemplated using this previously leased tankage in connection with further refinery operations. By letter dated September 14, 1982, DER informed Manatee Energy Company that its permit was being changed by deleting reference to the storage tanks in the project description and by replacing a condition concerning the storage tanks with the following language: "6. The crude oil splitter cannot be operated unless the necessary storage tanks are in the possession and control of Manatee Energy Company, the tanks meet all Department regulations, and Manatee Energy Company obtains the required permit(s)." This permit revision or modification is not the subject of challenge in the instant proceeding. It is relevant only to illustrate that any issue as to an increase in hydrocarbon discharges resulting from increased production is now mooted, since the storage tanks were the only source of hydrocarbon and volatile organic compound emissions associated with the crude oil splitter.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Intervenor's request for revisions to its Permit Number A041-26555 be GRANTED as proposed by the Department of Environmental Regulation on November 10, 1980, and January 19, 1981. Respectfully submitted and entered this 17th day of March, 1983, in Tallahassee, Leon County, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1983. COPIES FURNISHED: Thomas W. Reese 123 Eighth Street, North St. Petersburg, Florida 33701 Martha Harrell Hall Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 W. Guy McKenzie McKenzie & Panebianco Post Office Box 1200 Tallahassee, Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The petitioner is a non-profit corporation consisting of individual members who are residents of Tallahassee and Leon County and organizational members who have chapters in Tallahassee and Leon County. The primary purpose of petitioner is to bring about a balanced transportation system in Tallahassee and Leon County taking into consideration certain criteria which include the following: the prevention of neighborhood disruption and deterioration; the prevention of environmental degradation; and the prevention of harm to historical sites. In conjunction with this purpose and these criteria, one of petitioner's primary concerns is the prevention of degradation of air quality in the Tallahassee, Leon County area. Some members of the petitioner use that part of Thomasville Road to be affected by the subject application. The project for which the Department of Transportation seeks a Complex Source Permit is the four-laning of Thomasville Road from Eighth Avenue to Interstate 10 in Tallahassee, Florida. The Complex Source Permit was originally submitted to the Department of Environmental Regulation on March 22, 1976. The Department of Environmental Regulation did not accept that application, however, due to unacceptable modeling and monitoring. Thereafter, two supplements to the application were submitted to the Department of Environmental Regulation. The first, dated September 21, 1976, and the second, dated November 16, 1976, contained additional monitoring and a repeat of the modeling effort. Because of allegedly incorrect counts and speeds, the Department of Transportation submitted yet another application with revised monitoring and modeling data on January 4, 1978. This latest revised application is the subject of this hearing. The Department of Transportation did not monitor for or project the concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The Department of Environmental Regulation did not require the monitoring for or projection of concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The evidence presented in this proceeding does not establish that construction of the project for which a Complex Source Permit is sought herein would result in or cause an increase in ambient pollutant concentrations of any pollutant listed in Section 17-2.05, F.A.C., with the exception of carbon monoxide. The evidence presented indicates that remaining pollutants listed in the foregoing section would be emitted in insignificant quantities having no effect on the ambient air quality standard for that pollutant. The Department of Environmental Regulation has not independently monitored for any of the pollutants considered by Section 17-2.04(8), F.A.C., but has relied entirely on data submitted by the Department of Transportation. The Department of Transportation has based its carbon monoxide projections upon the use of the California Line Source Model, also known as Calair I, which is a mathematical computer model. It appears from the evidence presented that the Calair I computer model was used in a reasonable and proper manner and produced data which could be relied upon by the Department of Environmental Regulation. The Complex Source Permit application as finally submitted on January 4, 1978, projects the following concentrations for carbon monoxide: one-hour concentration for 1979, 6.7 ppm and for 1939, 4.8 ppm; for eight-hour concentrations in 1969, 2.8 ppm and for 1989, 2.0 ppm. The ambient air quality standard for carbon monoxide set forth in Section 17-2.05(1)(c), F.A.C., is 9 ppm maximum eight-hour concentration and 35 ppm maximum one-hour concentration, both not to be exceeded more than once per year. The testimony indicates that even if the calibration factor with the Calair I model were doubled, the projected carbon monoxide concentrations would not exceed the foregoing standard. No evidence was presented on the issues initially raised in this proceeding involving the Major Thoroughfare Plan, the Transportation Improvement Plan, and the Urban Area Transportation Plan. The testimony and evidence presented in this proceeding establishes reasonable assurance that the subject project will not cause a violation of the ambient air quality standards for the major pollutants to be emitted.
Findings Of Fact Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
The Issue Whether Bay North Corporation should be issued a permit to construct a domestic wastewater treatment and disposal system at Camp Weed, Franklin County, Florida, pursuant to Chapter 403, Florida Statutes.
Findings Of Fact On February 27, 1978, Lomax Smith, a builder and developer in Tallahassee, Florida, entered into an agreement with the Protestant Episcopal Church in the Diocese of Florida to purchase some 42 acres of real property and the improvements thereon known as "Camp Weed" which is located in Franklin County, Florida. The purchase price of the property was $725,000, with an earnest money deposit of $20,000, and closing of the transaction to be on or before July 1, 1978. At the time of purchase, eight dormitory and several accessory buildings were located on the property which utilized septic tanks for sewage disposal. An existing deep well is in the northwest portion of the property for a water supply. Smith proposed to develop the property by the sale of lots, remodel some of the existing buildings, and construct new housing units. He employed the engineering firm of Broward Davis and Associates, Inc., Tallahassee, Florida, to prepare the necessary design plans and a state environmental permit application for a proposed domestic wastewater treatment plant to be located on the site. (Testimony of L. Smith, N. Smith, Exhibits 12, 13) On September 6, 1978, Smith filed an application with Respondent Department of Environmental Regulation (DER) for a permit to construct the sewage treatment plant (STP) at Camp Weed. He signed the application as owner of the property although he had not closed the purchase transaction nor acquired legal title at that time. The application and supporting plans were reviewed in the Northwest District Office of the Department of Environmental Regulation after site investigation, and it was determined that construction of the facility would be in accordance with applicable laws and regulations. A construction permit was issued to Smith for the STP on October 10, 1978, subject to certain specified conditions attached to the permit. Notification of the permit issuance was not preceded by a notice of intent to grant the permit, nor were any third parties advised of its issuance. Petitioners St. Teresa Dock Association, Inc. (then St. Teresa Dock Association) and H.S. Oven first learned of the permit issuance when their counsel was informed by Smith's counsel on November 3, 1978, that the permit had been issued. Petitioners thereafter on November 17 filed a petition for hearing with DER. (Testimony of L. Smith, Huff, Exhibits 1, 4-5, 8) Camp Weed is bounded on the north by U.S. Highway 98 and on the south by the Gulf of Mexico. The planned site for the STP is in the northeast corner of the tract which is some twelve feet above mean sea level and approximately 950 feet from the shoreline. The elevation of the property on the northwestern side is about 24 feet and is five feet in the middle. The land slopes generally toward the middle area and drains in a southerly direction to the gulf. The subdivision of St. Teresa where Petitioners' members own summer homes is located immediately west of Camp Weed. The members of the St. Teresa Dock Association, Inc., and Petitioner Hamilton S. Oven use the beach and gulf waters for boating, fishing, and other recreational purposes. About a dozen shallow wells in the St. Teresa subdivision provide drinking water for the residents. They are located over 1700 feet southwest from the site of the proposed STP. There are two ponds north of the St. Teresa area adjacent to U.S. Highway 98. An artesian well is located in the gulf about 25 feet south of the Camp Weed property. (Testimony of Huff, N. Smith, Oven, Sensabaugh, Exhibits 2,7, 9-11, 22, 24) The proposed plant is designed to provide sewage treatment for 132 housing units containing an estimated population of 3 persons per unit. A gravity flow collection system to a pumping station will produce a peak influent rate of 29,700 gallons per day with an estimated biological oxygen demand (BOD) loading of 49.6 pounds per day. A basket strainer on the influent line will remove trash. Plant operation will involve the use of aeration tanks, clarifier, chlorination, sand filter and clear well for discharge to a percolation pond. A polishing pond was originally planned, but was deleted at the suggestion of the DER because it performs the same function as the proposed sand filter. Two percolation ponds for alternate use will be construed so that the pond bottom is twelve feet above sea level. A soil test revealed that a sand layer extends under the shallow surface top soil to a depth of approximately 10 feet before reaching the shallow ground water table and that the effluent will percolate through the sand at the rate of one inch per minute. A five foot soil boring by DER failed to encounter ground water at that level and show that rate of percolation through the sand would be acceptable. The ground water table is subject to an unknown variance indepth during the wet and dry seasons of the year depending on the amount of rainfall. Although tide fluctuations may also have some effect on depth of the ground water table, the tide most likely will be of minimum influence due to the distance of the plant site from the gulf. Percolation of at least three feet through sand before reaching ground water is sufficient to meet DER policy requirements. (Testimony of Huff, N. Smith, Bishop, Exhibits 1, 3, 16-17). Based on the design of the STP, it is predicted by applicant's design engineer that there will be at least 90 percent removal of pollutants after chlorination and prior to passage of the effluent through the sand filter. The engineer predicts that after such filtration, there will be approximately 95 percent removal prior to percolation and that the effluent will then be pure enough to use as drinking water. Further purification will take place during the percolation process. The DER District Supervisor of Domestic Wastewater Permitting, who also is a professional engineer, substantially agrees with those predictions. Actual results of the treatment process can be determined, however, only after tests from monitoring wells are made during actual trial operations of the plant. It is further agreed by those experts that the average chlorine residual content in the effluent will be 0.5 parts per million. The DER supervisor therefore is of the opinion that, if the STP is properly operated, the processed effluent will not degrade ground waters, not adversely affect the wells in the St. Teresa Community or the waters of the gulf. After percolation, there is further dilution and ultimately the ground water which reaches the gulf in eight to ten days will be in a purer form than prior to introduction of the effluent. Although a twenty-year storm criterion was applied in the design of the percolation ponds, a catastrophic storm such as a hurricane was not taken into consideration since it would not be economically feasible to design for such an effect and, in any event, super dilution caused by such a storm would negate the possibility of water quality degradation. (Testimony of Huff, N. Smith, Exhibit 1) The buildup of sludge in the plant's holding tank will require removal about once a year when the plant is in full operation. The applicant will employ a certified individual to operate the plant and to remove sludge periodically to an appropriate place for disposal in an authorized manner. DER regards sludge disposal to be a matter for determination at the time application is made for an operating permit. (Testimony of Huff, L. Smith, McNeill, N. Smith, Exhibit 1) The applicant estimates that the construction of the plant and collection system will cost approximately $1,000 per housing unit for a total of $132,000. It is planned to recover this cost on the sale of lots. A condition of such purchases will be that the sewage system and treatment plant will be operated by a home owners association which is to be activated in the near future. Maintenance cost of the sewage plant will be shared by the individual members. Approximately twenty or twenty-five members are required for economical operation of the plant. (Testimony of N. Smith, L. Smith) The county zoning classification for the Camp Weed area is currently the subject of litigation by the applicant in the Franklin County Circuit Court and the result of that litigation as to permitted density of housing will determine the amount of units to be constructed by the applicant. In any event, if the applicant does not secure a county building permit, any DER construction permit would expire at the termination of the time granted therefor. (Testimony of L. Smith, Huff, Exhibit 24) At the time Intervenor Lomax Smith signed the permit application, Bay North Corporation had not been formed. It was incorporated in November, 1978, in order that Smith could obtain financing to complete the property purchase. The transaction was closed November 6, 1978, and a warranty deed to the property was issued to Bay North Corporation by the Episcopal Church in the Diocese of Florida, Inc. The deed was recorded in the public records of Franklin County on November 7, 1978. Lomax Smith is the president and principal stockholder of Bay North Corporation. Promissory notes secured by mortgages to the Southern Bank of Tallahassee and the Episcopal Diocese of Florida in the amounts of $350,000 and $362,500 respectively, were executed by Bay North Corporation on the same date. Pursuant to a request to DER from Lomax Smith on May 15, 1979, the Northwest District DER Office, on June 29, 1979, purported to transfer the permit to Bay North Corporation and extend the expiration date to September 30, 1980. (Testimony of L. Smith, Huff, Exhibits 6, 14-15, 21) The construction permit issued in October, 1978, was subject to standard and special conditions, including the requirement that the permit holder comply with county and municipal regulations prior to construction. They provided that monthly reports be furnished to the DER prior to issuance of an operation permit setting forth wastewater characteristics during a trial period of plant operation. They also required that the facility meet the treatment requirements contained in Chapter 17-3, F.A.C., including a 90 percent reduction in BOD and suspended solids based on concentration of the influent entering the plant. The conditions further provide that at the time of application for an operation permit, it must be shown that a certified operator under Chapter 17- 16, F.A.C., is retained, together with a copy of any contract for contract operation of the facility. Additionally, the conditions require that two monitoring wells be established upstream and downstream of the ponds and that quarterly ground water samples be analyzed and reported to DER. A further condition provides that a three-foot buffer zone must be maintained between the bottom of the percolation ponds and the maximum elevation of the ground water. (Exhibit 8)
Recommendation That the Department of Environmental Regulation issue the requested permit to Bay North Corporation, subject to the conditions attached to the permit issued on October 10, 1978. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of November, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: George E. Lewis, II, Esq. 316 East Park Avenue Tallahassee, FL 32303 William L. Hyde, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Ben H. Wilkinson, Esq. Pennington, Wilkinson, Gary and Dunlap Post Office Box 3875 Tallahassee, FL 32303 Alfred O. Shuler, Esq. Post Office Box 850 Apalachicola, FL 32320
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
