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
The Issue Whether Gar-Con's revised application for a permit to construct a sewage plant, and soakage trenches to dispose of the effluent, should be granted?
Findings Of Fact Eight to ten miles south of Melbourne Beach and 8.3 miles north of Sebastian Inlet, Gar-Con plans to develop a parcel of land stretching west from the Atlantic Ocean, across Highway A1A, to the Indian River. Gar-Con expects to build a motel and residential complex complete with tennis courts, parking garage, water treatment plant and the sewage treatment facility for which a construction permit is sought in these proceedings. The sewage treatment plant would be built on a site 480 feet west of Highway A1A and 90 feet south of Gar-Con's northern property line, at an elevation of 11 or 12 feet above mean sea level. Ocean Way Water and Sewer Association, Inc. is to be organized as a nonprofit corporation to own and operate the wastewater treatment facility. The Public Service Commission, through the director of its water and sewer treatment, has taken the position that the proposed "sewer system will fall within the exemption described in Section 367.022(7), Florida Statutes." DER's Composite Exhibit A. PACKAGE PLANT PROPOSED The facility Gar-Con proposes is designed to treat 100,000 gallons of sewage daily, which is the estimated "total flow" (T. 75) the sanitary engineer who designed the system anticipates from the development. Sewage generated by the development would flow to the plant, through a bar rack designed to remove rags and other large objects, and into aeration tanks where, over a 24 hour period, interaction with air and a biological mass would supply oxygen and cause the formation of biological floccules. The flocculant sewage would then move to a clarifier hopper. During its five hour stay there, solids which were not earlier segregated as the sewage moved over a weir into the clarifier, would be precipitated and removed. The clear, residual liquid would be pumped through one of two sand filters (each of which would also have granular activated carbon and be capable of filtering 100,000 gallons daily) into one of two chlorine contact chambers where a gas chlorinator would introduce chlorine for an hour. Under ordinary circumstances, the chlorinated effluent would then be pumped into one of two soakage trenches. The soakage trenches, each designed for use every other week, are to be gravel-filled ditches covered over first with felt paper, then with compacted fill. The gravel would lie at least one foot beneath the surface of the ground in a space ten feet wide and three feet deep stretching the 940 foot length of each soakage trench. Punctured like sieves, two six-inch PVC pipes would run through the gravel, sweating effluent from their pores. There is also a plan to dig a percolation pond or grassed swale five feet deep, 120 feet long and 80 feet wide near the wastewater treatment plant, which could serve as a receptacle for effluent, in case of "a 1:10 year storm or when the filters are down and/or if soakage trenches would need repair." Gar- Con's Exhibit 2-A. It would hold about 100,000 gallons. The solids caught by the weir, those extracted in the clarifying process, and those recovered from backwashing the filters would serve as catalyst for the aeration process as needed. Excess sludge, about 3,000 pounds monthly, would undergo "aerobic digestion," before being removed to Brevard County's Central Disposal Facility on Adamson Road, for disposal there. Gar- Con's Exhibit No. 7. Primary and secondary drinking water standards would be met by the effluent as it left the plant (although the engineer who designed the system would not drink the effluent himself), except that, from time to time, nitrate concentrations might reach 12 milligrams per liter, and except in the "event that a homeowner might put some type of [inorganic toxic or carcinogenic] material into the sewer system." (T. 86) The biological oxygen demand (BOD) would be ten milligrams per liter; suspended solids would probably amount to about five milligrams per liter; pH would probably be slightly under seven; nitrates would average approximately eight milligrams per liter but would "peak out at certain times during the year, for maybe extended periods up to two months, at twelve milligrams per liter," (T. 80); and there would be a chlorine residual after 60 minutes of two milligrams per liter. AMBIENT WATERS There would be no direct discharge to the Atlantic Ocean, Indian River or any other body of surface water, nor would any indirect effect on surface waters be measurable. No body of surface water lies within 500 feet of the site proposed for the plant and soakage trenches. Potable groundwater underlies the site; the groundwater table slopes toward the Atlantic Ocean, 9.5 to 12.5 feet below ground. "[D]uring the traditional rainy season," Gar-Con's Exhibit 2B, Attachment, p.3, the groundwater may rise to within seven feet of the surface. The PVC pipes in the soakage trenches are to be placed two and a half feet deep. As effluent percolated through the sandy soil, there would be "mounding" of the groundwater underneath the soakage trenches, and dispersal in all directions. Surface flow is to be diverted from the soakace trenches so that only rainwater falling directly on them would percolate down through the gravel beds. Taking soil characteristics into account, and assuming a "water table depth" of 20 feet, an engineer retained by Gar-Con predicted that "the maximum expected groundwater rises beneath the east and west trenches are 2.4 and 2.1 feet, respectively under a loading of 100,000 gpd for a period of 7 days." Gar-Con's Exhibit No. 3. The water table depth, "the height, the top of the groundwater from the first restrictive layer," (T. 172), is probably more like 40 feet than 20, which accounts in part for the "conservatism" of the mounding predictions. Under very severe weather conditions (a 100 year storm), groundwater would rise as high as the bottom of the trenches making them unavailable to receive effluent, but the effluent would not be forced above ground. In a 100 year flood, water would be expected to rise to seven feet above mean sea level. Under such conditions, people could be expected to evacuate the area. In a 25 year storm, the system could be expected to continue to function. Groundwater to the north and east of the proposed site was sampled, and the samples were analyzed. The water to the north had 380 milligrams of chlorides per liter and the water to the east had 450 milligrams of chlorides per liter. As it left the proposed treatment plant, the effluent would contain approximately 150 milligrams of chlorides per liter. SOUND AND LIGHT Lights like those used as street lights are to be installed at four places in the wastewater treatment plant. A timer, which can be overridden, would turn the lights on at dusk and off at eleven o'clock at night. The lights would illuminate the plant adequately. Pumps would move sewage to and through the proposed plant. Most of the pump motors would be submerged and unable to be heard. Two electric blowers, a flow meter and a totalizer would also have electrical motors. The blowers and the blower motors are to be equipped with insulated fiberglass covers and the blowers would also have intake and double outlet silencers. Four feet from the plant the noise of the motors would be comparable to that of a home air conditioning unit. At the nearest residence the noise level would scarcely exceed background noise. At hearing, Gar-Con revised its application and agreed to install an emergency generator which would also be encased in insulated housing and is to be equipped with a muffler. AEROSOL AND ODOR Unless the proposed plant loses electric power for 24 hours or longer, no offensive odors would emanate from it. The bar rack and weirs would be regularly hosed down. Against the possibility of a power failure, Gar-Con agreed at hearing to install permanently an emergency generator with sufficient capacity to keep both the wastewater treatment plant and the water treatment plant it plans to build operable. No aerosol drift is foreseen. The surface of the liquid In the aeration tanks would be 1.4 feet below the top of the rim. Walkways four feet wide along the inside perimeters of the aeration holding tanks would prevent dispersal of most of aerosol. A decorative hedge around the treatment plant, which would eventually be 15 feet high, is a final fail-safe. WELLS To the north are two shallow wells within 500 feet of the site proposed for the wastewater treatment plant. Both wells belong to Kel Fox, who wrote Gar-Con that he had no objection to their proposed wastewater treatment facility in light of Gar-Con's agreement to furnish drinking water to existing facilities on his property and reimburse him expenses incurred in disconnecting the two shallow wells. Gar-Con's Exhibit 2E. There is a deep well within 500 feet to the south. DER and Gar-Con have entered into the following stipulation, dated September 2, 1983: Existing Wells. Prior to the operation of its waste water treatment plant, Gar-Con will offer to supply drinking water at a reasonable cost to owners of property on which are located operational or approved shallow drinking water wells that are within 500 feet of Gar-Con's land application site. Gar-Con will make this offer to all such owners known to it prior to the operation of its plant. Gar-Con will further offer to provide reasonable compensation to such owners to disconnect their shallow wells. Gar-Con will endeavor to arrange for provision of drinking water to these owners and the disconnection of those wells prior to the operation of its plant. Future Wells. Should nearby individual (non-corporate) property owners propose to construct shallow drinking wells located within 500 feet of Gar-Con's land application site after Gar-Con begins operation of its waste water treatment plant, Gar-Con also will offer to supply them with drinking water at a reasonable cost and to provide reasonable compensation to them to disconnect those wells. However, Gar-Con shall have no obligation to make any such offer to owners of future wells if sampling of monitoring wells located at or near its external property line indicates that the groundwater meets the primary drinking water standards and, after July 1, 1985, the secondary drinking water standards listed in Florida Administrative Code Rule 17-22.104. Gar-Con agrees to record a master notice of restriction barring future owners of lots within the Ocean Way development, which are owned by Car-Con at the time of permit issuance, from installing shallow drinking water wells on such property or otherwise using the shallow aquifer beneath their property as a source for irrigation or for potable water, so long as use of the proposed sewage disposal system continues, and the Department has not found that this restriction is unnecessary. This restriction, which shall be a covenant running with the land, further shall require future owners to purchase water from Gar-Con or any successor owner of the development's water system if Gar-Con or the successor provides water service. These restrictions also shall be contained in all other appropriate documents of title. In addition, Gar-Con plans to create a non-profit water and sewer association to own and control the development's water and sewer system. Gar-Con will include in the Articles of Incorporation of this association a requirement that all property owners served by the system must be members of the Association. Gar-Con is entitled to a zone of discharge extending to its current property line with the exception that the zone of discharge shall not include the area contained within a 100' radius of Gar-Cons's proposed water supply wells. DER Staff concurs that the above conditions, in conjunction with the sewage treatment and disposal system and the groundwater monitoring program proposed by the applicant, to meet the requirements of Chapter 17-4, F.A.C. will provide reasonable assurance that existing and future off-site and on-site property owners will be protected from any adverse effects that might result from the operation of the proposed sewage treatment disposal system. Petitioner's Exhibit No. 10. There are to be a half dozen monitoring wells to allow sampling of the groundwater at strategic points in the shallow aquifer. NATURAL RESOURCES Turtles nest in the general vicinity but off the site of the proposed project. Construction and operation of the proposed waste water treatment facility would have no impact on the turtles apart from making it possible for more people to live closer to where they nest.
Findings Of Fact Petitioner Alexis Crlenjak is the owner of an unimproved lot approximately 90 feet by 230 feet in size which abuts Black Creek in Clay County, Florida. (Testimony of Petitioner, Exhibit 2) By application received by the St. Johns River Subdistrict of the Department of Environmental Regulation on September 9, 1980, Petitioner sought a permit to place approximately 1,000 cubic yards of clean fill dirt over an area of 90 by 130 feet to a depth of 3 feet on the southern portion of his lot. The stated purpose for the request was to enable Petitioner to obtain a county permit to install a septic tank and drainfield in the filled portion of the lot. Such a permit previously had been denied by the county for the reason that inadequate drainage for a septic tank existed in the lot's present natural condition. (Testimony of Petitioner, Exhibit 2) Subsequent to receipt of the application, DER's Subdistrict Office solicited comments or objections to the proposed project from adjacent landowners and various governmental agencies. An adjoining landowner, Frederick G. Flagge, filed an opposition to the concept of placement of a septic tank and drainfield next to his land due to the possibility of seepage and contamination. The United States Environmental Protection Agency, Region IV, expressed the view that placement of fill material in flood plain wetlands to raise the elevation for a septic tank placement is not in the public's interest and recommended denial of the application, and suggested that the applicant utilize the upland portion of his property for such purpose. The Southeast Regional Office of the National Marine Fisheries Service, U.S. Department of Commerce, concluded that the work would adversely impact fishery resources by filling productive wetlands and made a similar recommendation to that of the EPA. A representative of the Department of Interior Fish and Wildlife Service inspected the area in November 1980, and found that the proposed project would destroy 0.27 acres of wetlands which provide nesting, feed and shelter habitat for various species of birds, maimals and reptiles. The agency therefore recommended that any fill be limited to upland areas. The Florida Game and Freshwater Fish Commission reviewed the application and recommended denial because the project would adversely affect fish and wildlife resources by eliminating a protective wetland habitat. (Testimony of Tyler, Exhibit 2) Petitioner's lot is bounded on the north by Black Creek, on the east by a dredged canal which terminates at a boat basin immediately south of his property. A filled driveway separates Petitioner' s land from the Flagge property to the west. Although the area surrounding the north bank of Black Creek is still in a natural condition, Petitioner's and Flagge's lots are practically the only ones on the south bank in that area which are undeveloped and still in a relatively natural state. The northern border of Petitioner's property is high and dry due to the berm along Black Creek which has been deposited over the years and has become vegetated. However, the southern half is a hardwood swamp area where blackgum is the dominant species, together with other species such as buttonbush, water ash, dahoon, willow, water locust, red maple and sweetgum. Black Creek is classified as a Class III body of water under Chapter 17-3, Florida Administrative Code. The type of vegetation on the southern portion of Petitioner's lot is associated with periodic inundation during seasonal rainfall, and is thus deemed to constitute the landward extent of waters of the state pursuant to the vegetative indices of Chapter 17-4, Florida Administrative Code. After receiving the application an environmental specialist in Respondent's subdistrict office visited the site and thereafter prepared a Permit Application Appraisal. He identified the various species of plant life located in the area to be filled and determined that it was properly within Respondent's jurisdiction. His appraisal found that the swamp area in question benefits the water quality of Black Creek by filtering sediments and assimilating pollutants generated by upland runoff. He also found that the area is a fish and wildlife habitat, provides flood control, and serves as a primary food source for fish and wildlife. He therefore determined that the proposed project would result in the elimination of those biological resources that aid in maintaining water quality and would further degrade water quality by adding septic tank waste in close proximity to the waterway. He concluded that the project as proposed would induce flooding on the lot to the West by blocking the flow through the swamp which presently is connected by a culvert under the filled driveway to the west. His supervisor subsequently visited the site and agreed with the application appraisal. It was their combined opinion that filling of the land would eventually lead to eutrophication of the adjacent canal and adversely affect the water quality of Black Creek. At the time of their visits, the DER personnel did not observe standing water on Petitioner's property, but did so on the adjacent lot to the west. (Testimony of Rector, Tyler, Exhibit 2) As a result of the adverse application appraisal, Respondent advised Petitioner on December 9, 1980, of its intent to deny the application based on the loss of submerged land, and anticipated water quality degradation by replacing the aquatic ecosystem with a septic tank and drain ield which has a potential for leaking into the adjacent canal. The Notice of Intent to Deny further specified state water quality standards which would be adversely affected, and found that the applicant had not provided the department with affirmative reasonable assurances that the immediate and long-term impacts of the project would not result in a violation of state water quality standards. (Testimony of Tyler, Exhibit 2) At the hearing, Petitioner scaled down his request by stating that he now only wished to fill an area approximately 25 feet by 40 feet in the southwest corner of his lot to serve as the drainfield for a septic tank. However, the DER personnel who had reviewed the project testified that their recommendation of denial would not be changed in spite of the reduced proposed filling activity. They were of the opinion that the same considerations which led to the denial recommendation would still be present, except on a smaller scale. They indicated that Petitioner could still use his land, in spite of the permit denial, for recreational activities, or by erecting a "stilt" house on the lower half of the lot. However, in such an eventuality, the septic tank and drainfield would have to be placed on the upland portion of the lot. As petitioner pointed out, this cannot take place under current health regulations in view of the fact that a well is located on the north side of the adjacent lot, and the spacing distance would be insufficient for state and county permitting purposes. Although Petitioner denied that a culvert existed under the driveway separating the lots, he conceded that he had not visited the property for about a year. (Testimony of Tyler, petitioner, Exhibit 2)
Recommendation That Petitioner's application be DENIED. DONE and ENTERED this 12th day of August, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 August, 1981. COPIES FURNISHED: Honorable Victoria J. TSchinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Silvia Morell Alderman, Esquire Alexis Crlenjak Assistant General Counsel Route 2, Box 618 Department of Environmental Havana, Florida 32333 Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On July 5, 1978, Gulfside applied to DER for the issuance of a permit to operate a wastewater treatment plant on property owned by it on Perdido Key in Escambia County, Florida. The proposed plant is designed to serve a condominium complex consisting of 64 units, with the expectation that 350 gallons of water per day per unit will be discharged into the system, thus requiring a minimum plant capacity of 22,400 gallons per day. The plant described in the application has a capacity to handle 24,000 gallons per day. The proposed plant will use an extended aeration process whereby effluent is routed from the individual units through a filter within the proposed plant and then discharged into two percolation ponds associated with the facility. The plant is designed to remove 90 percent of B.O.D. and suspended solids. In addition, the plant is designed with duplex blowers and pumps to insure continued operation in the event of failure of one of the units. An emergency generator is included to provide back-up power for the entire plant, including blowers, pumps and chlorinators. Perdido Key, where the proposed plant is to be located, is a barrier island located off the coast of Escambia County, Florida, near the Florida- Alabama border. There is substantial residential development presently on Perdido Key, but no central sewer system exists to service the area. Currently, only septic tanks and package sewer plants are available for waste treatment purposes on the island. Adjacent to Perdido Key is Old River, which has been classified a Class III water. Soils on Perdido Key are primarily sandy, and as a result, have a high percolation rate. The problem of high percolation rate through the soils of Perdido Key was adequately addressed by Gulfside in the design of percolation ponds associated with the proposed plant. The two percolation ponds are designed to be located at a minimum of four feet elevation above maximum high ground water level. In fact, during DER's review of this application, Gulfside agreed to raise the bottom elevation of these percolation ponds in response to a concern regarding their initial location in close proximity to the water table. The problem of the expected fast percolation rate was addressed in designing the size of these percolation ponds, and also taken into consideration in designing the method of distributing effluent across the bottom surface of the ponds. With regard to the latter consideration, initial design of the project contemplated a single point for discharge of effluent into each percolation pond. However, Gulfside has agreed to redesign these percolation ponds in such a fashion to discharge effluent more evenly throughout the bottom area of the ponds too combat the problem of the excess percolation rate. The proposed percolation ponds are designed with surface areas in excess of 15,000 square feet. The ponds were initially designed utilizing a six-to-one slope, which would have given twice the bottom surface area of the three-to-one slope eventually required by DER in the process of reviewing the application. The three-to-one slope shown in the plans and specifications results in a bottom surface area of 2,974 square feet. However, the engineering report submitted with the application indicates that percolation ponds will have a bottom surface area of 4,480 square feet. From the evidence, it would appear appropriate for the ponds to have a minimum bottom surface area of 4,480 square feet. From the evidence, this problem can easily be rectified by raising the bottom elevation of the percolation ponds by approximately one foot. This requirement should be imposed as a condition to the granting of the requested permit. The proposed plant, although designed to remove 90 percent of B.O.D. and suspended solids, is not designed to remove nutrients from the effluent. However, the evidence establishes that these nutrients. Will be removed by a combination of filtration through soil substrata and biological action in the percolation ponds. Gulfside has also agreed to install a spartina marsh waterward of the percolation ponds to act as a final nutrient scrubber. The system design is reasonably calculated to assure removal of harmful quantities of nutrients, and no competent evidence was adduced to indicate that the system design was not sufficient for this purpose. Thus, although the treatment plant is proposed to be located only 50 feet from Old River, there is no indication that it will, in fact, result in any adverse impacts to that water body. In addition, DER has no rules or guidelines regulating distances from which package sewer plants, such as that proposed in this application, should be located from bodies of water such as Old River. It should be noted here that the application which is the subject of this proceeding is solely for the purpose of construction of the proposed facility. DER has imposed a permit condition requiring an initial four months operation for appropriate testing to determine compliance with the rules and regulations promulgated by DER before issuance of an operation permit. If testing demonstrates noncompliance with DER's rules and regulations, the operating permit for the facility can be denied. Testimony adduced at the hearing established that members of Petitioner, Southest Escambia Improvement Association, Inc., own property in the vicinity of the proposed facility, and that they utilize waters surrounding Perdido Key for sailing, swimming, crabbing and other recreational uses. Both Petitioner and Gulfside have submitted Proposed Findings of Fact. Petitioner's Proposed Findings of Fact numbered 1, 2, 3, 4 and 8 have been substantially adopted in this Recommended Order. Gulfside's Proposed Findings of Fact numbered 1 through 5 have also been substantially adopted in this Recommended Order. To the extent that Proposed Findings of Fact submitted by either Petitioner or Gulfside are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues under consideration in this cause, or as not having been supported by the evidence.
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
Findings Of Fact As planned, Phase I of Foxwood Lake Estates will consist of 300 mobile homes, which would require treatment of up to 45,000 gallons of sewage per day. The proposed sewage treatment plant would have a capacity of 46,000 gallons per day and would be capable of expansion. It would discharge treated, chlorinated water into a completely clay-lined polishing pond that has been designed for the whole of Foxwood Lake Estates at build-out; capacity of the polishing pond would be three times the capacity necessary for Phase I by itself. From the polishing pond, water is to flow into one or both of two evaporation-percolation ponds, either of which would be big enough for all the sewage expected from Phase I. The sides of these ponds would be lined with clay and a clay plug would constitute the core of the dike on the downslope side of each pond. According to the uncontroverted evidence, effluent leaving the treatment plant for the polishing pond would have been effectively treated by the latest technology and would already have been sufficiently purified to meet the applicable DER water quality requirements. The applicant proposes to dig the triangular polishing pond in the northwest corner of the Foxwood Lake Estates property, some 400 feet east of the western property line. The evaporation-percolation ponds would lie adjacent to the polishing pond along an axis running northwest to southeast. Their bottoms would be at an elevation of 164.5 feet above mean sea level and they are designed to be three feet deep. The evaporation-percolation ponds would lie some 300 feet east of the western property line at their northerly end and some 400 feet east of the western property line at their southerly end. A berm eight feet wide along the northern edge of the northern evaporation-percolation pond would be 50 feet from the northern boundary of the applicant's property. Forrest Sawyer owns the property directly north of the site proposed for the evaporation-percolation ponds. He has a house within 210 feet of the proposed sewage treatment complex, a well by his house, and another well some 300 feet away next to a barn. Two or three acres in the southwest corner of the Sawyer property are downhill from the site proposed for the ponds. This low area, which extends onto the applicant's property, is extremely wet in times of normal rainfall. Together with his brother and his sister, Charles C. Krug owns 40 acres abutting the applicant's property to the west; their father acquired the property in 1926. They have a shallow well some 100 feet from the applicant's western property boundary, and farm part of the hill that slopes downward southwesterly from high ground on the applicant's property. Sweetgum and bayhead trees in the area are also a money crop. Charles C. Krug, whose chief source of income is from his work as an employee of the telephone company, remembers water emerging from this sloping ground in wet weather. Borings were done in two places near the site proposed for the ponds. An augur boring to a depth of six feet did not hit water. The other soil boring revealed that the water table was 8.8 feet below the ground at that point. The topsoil in the vicinity is a fine, dark gray sand about six inches deep. Below the topsoil lies a layer of fine, yellow-tan sand about 30 inches thick. A layer of coarser sand about a foot thick lies underneath the yellow-tan sand. Beginning four or five feet below the surface, the coarser sand becomes clayey and is mixed with traces of cemented sand. Clayey sand with traces of cemented sand is permeable but water percolates more slowly through this mixture than through the soils above it. The applicant caused a percolation test to be performed in the area proposed for the ponds. A PVC pipe six feet long and eight inches in diameter was driven into the ground to the depth proposed for the evaporation-percolation ponds and 50 gallons of water were poured down the pipe. This procedure was repeated on 14 consecutive days except that, after a few days, the pipe took only 36 gallons, which completely drained into the soil overnight. There was some rain during this 14-day period. Extrapolating from the area of the pipe's cross-section, Vincent Pickett, an engineer retained by the applicant, testified that the percolation rate of the soils was on the order of 103 gallons per square foot per day, as compared to the design assumption for the ponds of 1.83 or 1.87 gallons per square foot per day. Water percolating down through the bottoms of the evaporation- percolation ponds would travel in a southwesterly direction until it mixed with the groundwater under the applicant's property. It is unlikely that the ponds would overflow their berms even under hurricane conditions. Under wet conditions, however, the groundwater table may rise so that water crops out of the hillside higher up than normal. The proposed placement of the ponds makes such outcropping more likely, but it is impossible to quantify this enhanced likelihood in the absence of more precise information about, among other things, the configuration of the groundwater table.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant the application on the conditions specified in its notice of intent to issue the same. Respectfully submitted and entered this 17th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32301 Telephone: 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980. COPIES FURNISHED: Andrew R. Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David M. Levin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Schofield Corporation of Orlando has applied to the Department of Environmental Regulation for a permit to construct and operate a Class III trash/yard trash landfill in Orange County, Florida. The issues are whether the applicant is entitled to the permit and, if so, what conditions should attach. Also at issue is Schofield Corporation's motion for attorney's fees and costs, pursuant to Section 403.412(2)(f), F.S.
Findings Of Fact The applicant, Schofield Corporation of Orlando (Schofield), owns the proposed landfill site and existing permits for the site. The proposed site is located in West Orange County, southwest of the intersection of State Road 545 and Schofield Road on the west half of the northwest quarter of section 32, township 23 south, range 27 east, comprising approximately sixty acres within a larger eighty-acre parcel. In some undetermined distant past the site was cultivated in citrus. It is currently being excavated as a borrow pit. The materials proposed to be placed in the landfill include trash, yard trash, construction and demolition debris and clean debris, as defined in DER Rule 17-701.020, F.A.C. The northern half of the site is flat and will be used first for the composting operation. The southern excavated portion of the site will receive the permitted fill material until it is flattened. Then, the two functions will alternate; the composting will occur on the south, and the north end will be excavated to receive fill. The proposed facility will be operated by Chambers Corporation, a nationally recognized waste management company with approximately 20 years of experience in solid waste management. The landfill site will be completely fenced, with a gate entrance mid-site between the landfill and compost area. The gate will be locked when the facility is not in operation, and will be patrolled by security personnel 24 hours a day. "Spotters", or inspectors will be employed to examine incoming waste loads at the gate, from a high gantry, and at the place where the waste is deposited. The loads will be monitored by a television camera, and all haulers will be under contract. The landfill will not accept loads from trucks coming off the road looking for a place to dump. Receptacles will be maintained on site to receive errant non-permitted waste that is found in a load, and that waste will be properly disposed of elsewhere. Schofield has several permits related to its proposed operation. These include a type III landfill permit from Orange County, a compost facility permit from DER, a general construction and demolition debris landfill permit from DER, a surface water management permit from the South Florida Water Management District, and a permit to excavate or mine from the Florida Department of Natural Resources. Schofield also has a contract to receive yard waste from Orange County. The initial term of contract requires at least ten percent of the yard waste to be composted or recycled, with the percentage amount to be renegotiated in subsequent contract renewals. In the hierarchy of landfills, DER considers Class III the least environmentally sensitive. Problems with unauthorized waste and with water quality occur more frequently with Class I landfills, defined as accommodating more than twenty tons a day of residential garbage. In this case DER has proposed to grant Schofield its Class III permit without the requirement of a bottom liner or a leachate or gas control system because of the nature of the waste that will be accepted and because of the rigorous controls, described above, to avoid receiving unauthorized or hazardous waste. The Petitioners are an individual and a homeowners' association representing a residential area approximately a half mile south of the proposed site. Petitioners contend that the applicant's data is insufficient to provide reasonable assurances that water quality standards will not be violated. Petitioners contend that the landfill, if approved, should be required to have a liner to prevent leachate from polluting the groundwater. They further contend that the groundwater monitoring plan submitted by the applicant is inadequate to detect vertical movement of contaminated leachate into the Floridan aquifer, a major source of water supply in Orange County. Hydrogeology The site of the proposed landfill is within a high recharge area. Water percolates rapidly though the soil, moving downward into the aquifer, and laterally off site. The site is considered Karst terrain, underlined with limerock. There is evidence of relic sinkholes, thousands of years old, but there is a low probability of future open sinkhole development. The geology in the area of the site provides adequate structural support for the proposed facility. An aquifer is generally defined as a unit of material which contains water and can give up a sufficient amount of yield to provide some productive flow for pumpage. Below the site there are two aquifers: the shallow water table, or surficial aquifer, containing clean well-drained fine sands, about 70 feet down; and the Floridan, primarily limestone, encountered at a depth of approximately 115 feet. The two are separated by a confining layer of less permeable sands and clay. Flow in the Floridan at the site is primarily from the west to east. Flow in the surficial is also generally from west to east, but the Petitioners theorize, and have presented competent supporting evidence, that there are fissures in the confining layer, allowing some internal drainage within the site, causing surficial water to flow vertically into the Floridan, rather than laterally off-site in an eastward direction. Based on recent data taken from two piezometers installed near the middle of the site, the applicant's hydrogeologist, James Golden, concedes that "mounding" exists along the eastern boundary of the site, reflecting some flow westerly back into the interior of the site. Petitioners' theory regarding internal draining of the site is based in part on data as to groundwater elevation. Groundwater elevation or high groundwater table is the elevation at which water stands on a continuous surface under the site. Jammal and Associates is a consultant firm which has done field studies of this and neighboring sites in the past, for various purposes. Some open bore readings taken by Jammal and Associates in a 1983 study for the Orange County Rapid Infiltration Basin project indicate groundwater table levels on site up to 126 feet, National Geodetic Vertical Data (NGVD). Open bore readings are less reliable than cased hole readings; due to collapses within the hole, artificially high readings are sometimes obtained. Data from the applicant's consultants reveals groundwater tables at 96-98 NGVD. This data was most recently obtained in December 1991 from sealed and surveyed piezometer casings, but not from the area of the site where Jammal's higher readings were obtained. Although it may be conjectured that Jammal's high readings are anomalous, additional sealed borings need to be obtained before the anomaly is confirmed. Groundwater elevations are significant also to determine the depth to which the landfill may be excavated. Based on its December 1991 readings, obtained after the application for permit was filed, the applicant agreed to raise the proposed bottom of the landfill to approximately five feet above the level of the estimated high (wet weather) groundwater table in the area. Water Quality and Monitoring Specific conditions of the proposed permit include DER's requirements that Class GII water quality standards be met at the boundary of the zone of discharge, in accordance with Rule 17-3, F.A.C. The zone of discharge for this facility is a three-dimensional volume defined in the vertical plane as the top of the ground to the base of the most surficial aquifer, and horizontally 100 feet from the edge of the waste-filled area, or the property boundary, whichever is less. The groundwater monitoring plan proposed by the applicant includes one upstream monitoring well on the west side of the site and five wells along the east side of the site, with an additional well at the south, between the project and the Petitioners' residential area. The wells extend down into the upper zone of the surficial aquifer, but not into the deeper limestone Floridan. The downstream wells should detect any contamination in the surficial aquifer flowing from west to east at the zone of discharge. However, they will not pick up contamination draining internally within the site and into the Floridan. Such contamination is possible, even though leachate from Class III- type wastes is expected to be relatively benign. Volatile organic carbons (VOCs) have not typically been a problem in Class III landfills, unless those landfills were previously operated as Class I sites. Secondary drinking water standards for certain metals have been violated at some Class III sites, but such violations are often related to the problem of sampling newly-installed wells. From DER records, Petitioners presented evidence of consistent drinking water quality standard violations in Class III landfills. That such violations can occur in Class III landfills is clearly established. It is not so clear that such violations will occur in this facility, given the proposed controls on load content. However, even acceptable materials will not avoid the production of leachate or gas. Within demolition waste there are chemically bound components which are inseparable, for example, creosote and other preservatives, glues, paints, resins, varnishes and stains. The lignin, tannins and volatile organic acids which are produced when wood decomposes alter the pH of the groundwater. As the water becomes more acidic, heavy metals that were typically bound up in the waste or in the soil, are released in soluble form and travel with the water. The decomposition process occurring in the construction and demolition waste is enhanced by the addition of yard trash which becomes the food source for the biodegradation. Summary of Findings and Proposed Permit Conditions If, as applicant suggests, all groundwater moves primarily from west to east within the site, given the proposed operational controls and the proposed monitoring plan, reasonable assurances have been provided that water quality standards will not be violated beyond the zone of discharge. That is, any contamination likely to occur will be contained within the surficial aquifer and within the 100 feet or property line horizontal boundary. Transmissivity of the surficial aquifer is low enough to allow mixing of the leachate before it reaches the zone of discharge. The Petitioners, however, have presented credible evidence sufficient to question the groundwater flow premise and sufficient to require additional conditions on the permit. If leachate reaches the Floridan through fissures in the confining layer, it will move rapidly off site. In its proposed recommended order DER has suggested additional permit conditions and in its adoption of the proposed recommended order, the applicant has accepted those additional permit conditions. Those permit conditions recognize the fact that data presently provided by the applicant is insufficient to overcome the evidence by Petitioners as to the hydrogeological characteristics of the site with the possibility of internal drainage and vertical intrusion of contaminated water into the Floridan aquifer. The proposed recommended order provides this finding: ...that the ground water monitoring plan as proposed in this proceeding is adequate, provided that there be added to the permit conditions that the permittee conduct appropriate water table testing with cased piezometers during the next wet season to determine whether ground water flow is internal within the site and therefore not intercepted by the present ground water monitoring wells. The permittee shall consult with DER and get approval for the location and construction of these wells prior to their installation. The results shall be immediately submitted to the DER. The ground water monitoring requirements should be modified if necessary at that time pursuant to Rule 17-28.700(5) to assure proper monitoring at this site. (DER proposed Recommended Order, p. 17) The ground water monitoring plan modification suggested by DER is that deeper monitoring wells, into the Floridan aquifer, be required if the additional testing reveals the likelihood of internal on-site ground water drainage. These conditions are still inadequate since they lack specificity with regard to the extent of testing, the location and construction of the wells, and the amendments to the monitoring program to be required if internal drainage is confirmed. Moreover, the proposed conditions fail to address the possibility that the permit should require a liner for the landfill if the data to be obtained reveals the likelihood that contaminates will penetrate into the groundwater of the Floridan. Monitoring programs, however effective, only predict or detect problems; they do not remediate them. Groundwater contamination by landfills is not quickly and easily reversed. Unlike discharges from other facilities such as spray application or deep well injection, the leachate from a landfill is not "turned off". Without the additional data which all parties agree is needed, it is impossible to determine what additional conditions, if any, should be required or what amendments, if any, need to be made to the applicant's proposed monitoring plan.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Environmental Regulation issue its Final Order denying the application for Class III land fill permit. DONE AND RECOMMENDED this 17th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of June, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraph 1. Adopted in substance in paragraph 10. 3.-11. Rejected as unnecessary. 12.-23. Rejected as argument or summary of testimony, rather than findings of fact. 24. Rejected as unnecessary. 25.-30. Rejected as argument or summary of testimony, rather than findings of fact. 31. Rejected as unnecessary. 32.-41. Rejected as argument or summary of testimony, rather than findings of fact. Rejected as unnecessary. Adopted in substance throughout the recommended findings. 44.-50. Adopted in Preliminary Statement and paragraph 4. 51. Rejected as unnecessary. 52.-53. Adopted in paragraph 2. 54.-55. Rejected as statement of testimony rather than finding of fact. Adopted in paragraph 3. Rejected as unnecessary. 58.-97. Rejected as argument or statement of testimony, rather than findings of fact. Subparts a), b), c) and e) are rejected as unsupported by competent evidence. The evidence suggests that violations might occur and that insufficient data has been produced. Subpart d) is adopted, by implication in paragraph 18. 99.-101. Adopted in summary in paragraph 20. Respondent's Proposed Findings of Fact Addressed in Preliminary Statement. Adopted in paragraphs 1, 2 and 5. 3.-4. Adopted in paragraph 4. Adopted in summary in paragraph 11. Adopted in paragraph 13. Rejected as unnecessary or irrelevant, given the stipulation related to Section 403.412, F.S. standing. Rejected as cumulative. Adopted in paragraph 10. Adopted in paragraph 9. Adopted in substance in paragraph 9. 12.-13. Adopted in paragraph 13. Adopted in substance in paragraph 16. Rejected as unsupported by the evidence. If internal drainage is shown to exist, conditions other than additional monitoring wells may be required. Adopted in paragraph 17. 17.-18. Adopted in paragraph 3. 19.-21. Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 12. 24.-26. Adopted in general in paragraph 14. 27. The unlikelihood that unauthorized waste will be dumped is adopted in paragraph 3. Whether there will be a violation of ground water quality standards at the zone of discharge was not established, given the need for additional data on internal draining. COPIES FURNISHED: Thomas B. Drage, Jr., Esquire P.O. Box 87 Orlando, FL 32802 Irby G. Pugh, Esquire 218 Annie Street Orlando, FL 32806 Douglas H. MacLaughlin Asst. General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The ultimate issue to be resolved in this proceeding is whether the Department should issue a permit allowing the construction of a wastewater treatment and disposal system as requested in the modified application filed by Thomas E. Wasdin. The applicant and the Department contend that reasonable assurances have been given that the proposed facility will not result in violations of any of the Department's rules or regulations. The Petitioner contends that the proposed facility is located too near to existing shallow water drinking wells and that the facility otherwise fails to comport with the Department's rules and regulations.
Findings Of Fact Petitioner is the president of Beach Woods of Brevard County, Inc. The corporation is the developer of "Beach Woods," a 376-unit planned unit development located in Melbourne Beach, Brevard County, Florida. One hundred eighty of the units have already been developed. Existing regional sewage treatment facilities operated by Brevard County are not adequate to accommodate the total number of units that the applicant proposes to develop. It appears that 24 more hookups are all that the existing facilities will tolerate. Beyond that number, a sewer moratorium is in effect, and unless the applicant can make some other arrangement for disposing of sewage, the development cannot be completed. The county has approved the planned unit development. In order to meet sewage treatment needs of the proposed development, the applicant is proposing to construct a "package sewage treatment plant" to accommodate waste that exceeds quantities that can be handled by existing regional facilities. Once the regional facilities are upgraded so that the development's sewage treatment needs can be accommodated, the applicant proposes to disassemble the package plant and utilize the regional facilities. The proposed plant would be a 50,000 gallons per day contact stabilization sewage treatment plant. Initially, it would be operated as a 5,000 to 15,000 gallons per day aeration plant. Once loads reach 18,000 gallons per day, it would become a contact stabilization plant. The Present collection and transmission system for sewage that exists at Beach Woods includes an 8-Inch collection station from which sewage flows to an existing lift station that pumps effluent via 6-inch pipes to the regional plant. When the proposed plant is completed, a computerized system would be set up to send effluent to the new plants when the limits that the regional plant can accommodate are met. Once the regional plant is upgraded to sufficient capacity, the bypass to the proposed plant would be eliminated, and all units would then be connected to the original collection system. The proposed treatment plant is based upon proven technology that has been in existence for more than 50 years. The plant should operate reliably, and proper consideration has been given to odor, noise, lighting, and aerosol drift. In close proximity to the plant, it is likely that there would occasionally be a "earthy smell" that would be noticeable, but not objectionable. Outside of the immediate proximity, no odor would be noticeable. Large fans would be operated in connection with the plant, and some noise would result. It does not, however, appear that the noise would be excessive or bothersome, even in the immediate vicinity of the plant. The plant would be lighted by street lights and would not result in any more excessive lights than normal street lights. The plant is not of the sort that aerosol drift is a likely problem. Adequate considerations have been given to providing emergency power to the plant in the event of a power outage. The plant could sit for at least 20 hours without power before any emergency would exist. If there was a power outage in excess of that period, emergency power sources are available. Consideration has been given to the 100-year flood plain. The plant has been placed at an elevation that keeps it outside of the 100-year flood plain. The land application system proposed by the applicant would utilize drain fields that would be alternately rested. Groundwater flows from the area of the proposed drain fields are in a southwesterly direction toward the Indian River. The Indian River in the location of the proposed facility is a "Class III surface water." Groundwater in the area of the proposed facility might be classified as either "G-I" or "G-II." Reasonable assurance has been given that the proposed sewage treatment plant would not operate in such a manner as to degrade surface or ground waters to the extent that any of the Department's specific water quality parameters set out in Chapter 17, Florida Administrative Code, would be violated. The proposed sewage treatment plant comports with local requirements and has been approved by Brevard County. The Allans Subdivision is a residential development that is located directly to the north of the Beach Woods development. Petitioner utilizes a shallow water well as a source of drinking water. The proposed land application site of the sewage treatment plant is located within 500 feet of the Petitioner's well. There are at least two other shallow water wells that serve as drinking water sources located within 500 feet of the proposed land application site. The applicant indicated a willingness to move the proposed facility so that no part of it would be located within 500 feet of the shallow drinking water wells. The evidence establishes that the plant could be moved to accomplish that. No specific plan, however was presented. Potential factual issues could exist respecting appropriate buffer zones for any relocation of the facility, even a minor relocation. The applicant is proposing to develop areas within 100 feet of the proposed facility. The applicant does not, however, propose to locate any public eating, drinking, or bathing facilities within 100 feet of the proposed plant or land application area. No map was presented during the course of proceedings before the Department of Environmental Regulation that preceded the formal administrative hearing or during the hearing itself to establish present and anticipated land uses within one mile of the boundaries of the proposed facility. The facility of such a size that it could not inhibit any conceivable present or proposed future land uses except within 500 feet of the proposed facility. Evidence was offered at the hearing from which it could be concluded that the Department has, in the past, issued permits for sewage treatment plants located within 500 feet of existing shallow drinking water wells. The testimony was that this has occurred despite a requirement in the Department's rules that there be a 500-foot buffer zone between any such plant and a shallow drinking water supply. No specific evidence was presented as to why the Department has allowed such a breach of its rules or why it should be allowed in this proceeding.
The Issue The issue in this case is whether the Department of Health (Department or DOH) should fine the Petitioner, Jeffery Benefield, $500 and require him to move the drainfield of his onsite sewage disposal system so that no part of it is within ten feet of the potable water line of his neighbors, the Intervenors, Robert and Wanda Schweigel.
Findings Of Fact The Petitioner's home at 10920 Lake Minneola Shores Road (Lake County Road 561-A) was built in 1977. It included an onsite septic tank and drainfield sewage disposal system. On March 31, 2003, the Petitioner personally applied for a permit to repair his existing sewage disposal system by replacing the drainfield. His application did not identify any potable water lines. Department personnel evaluated the site and calculated system specifications, and the Department issued a construction permit on April 3, 2003, based on the estimated size of the existing system. To replace the existing drainfield and meet specifications, 375 square feet of drainfield was required. However, the Petitioner wanted to add 125 square feet to what was required by the specifications, which is acceptable so long as required setbacks are maintained. The Petitioner's drainfield was replaced by a licensed contractor on April 29, 2003. Some work may have been done the following day to complete the job, but it appears that the contractor called for the final inspection on April 29, 2003. On inspection, it was clear that the new drain line closest and (like the other three) parallel to the property line was less than ten feet from a water line, riser, and spigot on the neighboring property, which was owned by Robert and Wanda Schweigel. Specifically, the closest of the new drain lines was estimated to be just five feet from the Schweigels' water line, riser, and spigot. (The next closest was just under ten feet from the Schweigels' water line, riser, and spigot.) As a result, the Department disapproved the installation. The Petitioner disputed the disapproval, initially contending that the Schweigels' water line, riser, and spigot did not convey potable water. It was decided that the new drainfield should be covered while pending a decision as to whether the water line was potable. By the end of July 2003, the Department decided that the Schweigels' water line was indeed potable. In that approximate time frame, the Petitioner's contractor offered to pay to have the Schweigels' water line "sleeved" to a distance at least ten feet from the nearest portion of the Petitioner's drainfield.2 He believed that solution would be much simpler and less costly than moving the Petitioner's drainfield to a distance at least ten feet from any part of the Schweigels' potable water line. This alternative was presented to the Schweigels in that approximate timeframe, but they refused (and continue to refuse.) In August 2003, the Petitioner took the position that, regardless whether the Schweigels' water line was potable, the Petitioner's new drainfield was in the same location as the existing drainfield, and the part of the water line closest to the new drainfield (i.e., the part including the riser and spigot) was not there until after the middle of April 2003 and was recently installed either just before or while the Petitioner's new drainfield was being installed. The evidence was not clear as to the configuration and precise location of the drain lines in the Petitioner's original drainfield. However, it appears to have had three drain lines emanating from the septic tank, starting in the direction of the Schweigels' property and then curving away in the direction of Lake Minneola, which is behind the Petitioner's and the Schweigels' properties, before terminating. The replacement drainfield had pipe emanating from the septic tank and running towards the Schweigels' property line before making a 90-degree turn towards the lake before connecting to the middle of a header pipe. Connecting to the header pipe are four equally-spaced drain lines, one on either end of the header pipe and two in between, that are perpendicular to the header pipe and parallel to each other and to the Schweigels' property line (and potable water line) and run towards the lake. As indicated, it was not clear from the evidence precisely where all of the old drain lines were located, or how close they got to the Schweigels' property (and potable water line.) However, it does not appear that they got as close as two of the four new drain lines in the replacement system. See Petitioner's Exhibits 13 and 21. There was conflicting evidence as to when the Schweigels' potable water line was installed. It is clear from the evidence that there are now three "T's" off the water line from the potable water source near the street. One "T- off" leads to near the front corner of the house, one leads to the middle of the side of the house, and one leads to near the rear corner of the house. The line then extends past the last "T" to the location of the water riser and spigot. The Petitioner's evidence proved that the water line riser and spigot now within ten feet of the Petitioner's drainfield were not there either in May 1999 or on April 14, 2003. But the Schweigels maintained, and the evidence as a whole was persuasive, that the potable water lines currently in place were installed in 1996 or 1997, but were cut and moved to enable the Schweigels to install footers for construction of a concrete privacy wall in approximately 1999. After installation of the footers, the water line had to be moved several inches closer to the Schweigels' house when replaced, and the "T's" were reconnected to the line. In approximately April 2003, the water line riser and spigot were damaged (the evidence was not clear how) and had to be replaced. The evidence was that the Schweigels got a permit to build their privacy wall but did not get a permit for the plumbing work that was necessary in conjunction with the installation of the footers for the wall. Although it appears from the evidence that a plumbing permit was required, the Schweigels did not think a separate plumbing permit was necessary. It is not found that the Petitioner participated in this proceeding for an "improper purpose"--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order that the Petitioner pay a $500 fine and either: (1) pay the reasonable cost of having the Schweigels' potable water line "sealed with a water proof sealant within a sleeve of similar material pipe to a distance of at least 10 feet from the nearest portion of the system," so long as no portion of the Schweigels' potable water line "within 5 feet of the drainfield shall be located at an elevation lower than the drainfield absorption surface"; or (2) move or relocate his drainfield to meet the setback requirements of the current Rule 64E-6.005(2)(b). DONE AND ENTERED this 15th day of February, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 15th day of February, 2005.
