Findings Of Fact J. Armand Martin is the owner of a lot located in Pasco County, Florida, which includes an island surrounded by a body of water known as Sleepy Lagoon and a 15-foot strip of land on the mainland. This case arose out of Martin's efforts to develop this lot and construct a personal residence on the island. Residential dwellings surround the lagoon and Martin's island. In order to build a residence on the island, Martin had to install a septic tank. To install a septic tank Martin had to apply for a permit to install an individual sewage disposal system. It was Martin's original intent to locate the sewage treatment facility on the mainland and pipe the sewage over the bridge he planned to build to access his island. Martin made application for the required septic tank permit to the Pasco County Health Department. The inspector from the Pasco County Health Department was taken aback by the situation she encountered when she did the preliminary inspection and called in her supervisor, Donald Van Kampers, for assistance. Van Kampers eventually inspected the island and suggested that Martin put his individual sewage disposal system on the island itself, pointing out that because the island was so low the installation would probably have to include a sand filter system and possibly a chlorinating system. Van Kampers also advised Martin that he would have to seek a variance from the Staff Director of the Health Program Office pursuant to Rule 10D-6.21, Florida Administrative Code, because the island was so narrow that the system would be within 50 feet of the lagoon's waters contrary to Rule 10D-6.24(4), Florida Administrative Code. Martin received assistance from Van Kampers on his application for the variance. This application called for the filing of a site plan drawn to scale. In addition to being surrounded by Sleepy Lagoon, Martin's island circumscribes a small body of water variously referred to as a pond, lagoon and even "wetlands." Martin transmitted to Van Kampers a surveyor's drawing of his island which did not show the island's own small body of water. In an effort to assist Martin, Van Kampers filled in the proposed location of Martin's house and the individual sewage disposal system (septic tank with sand filter) on this surveyor's drawing, attached it to Martin's request for a variance and forwarded it to the Staff Director for the Health Program Office together with a recommendation of approval by the Pasco County Health Unit. This drawing did not show the body of water on the island. The Staff Director forwarded the application to the Review Committee which he appoints to review applications for variances. There is no evidence that Martin saw this drawing prior to the Review Committee's approval of the variance which, with the affirmative recommendation of the Pasco County Health Unit, was summarily granted. Subsequently, several of the residents surrounding Sleepy Lagoon and Martin's island became concerned about the potential problems which Martin's individual sewage disposal system would have on their lagoon, its environment and its ecology. Their complaints eventually came to the attention of the Staff Director of the Health Program Office, who in turn forwarded the matter to John Heber, the Department's representative to the Review Committee, for investigation. Heber conducted a personal inspection of Martin's island and compared it with the drawing filed by Van Kampers in Martin's behalf. Heber found that according to the drawing the individual sewage disposal system would be located in the middle of the water on Martin's island. Having made this discovery, Heber initiated actions which resulted in the Issuance of an Administrative Complaint to have the variance issued Martin rescinded. The Administrative Complaint alleged that Martin had "misrepresented" facts on his application for the variance by not showing the water on his island. Martin made a timely request for a formal hearing on the allegations. Martin did not fill out the drawing which accompanied his application. It was filled out by Van Kampers, who did not draw in the island's water and put the individual sewage disposal system in the middle of where the water is currently located. Van Kampers and his supervisor, both of whom visited the island, did not consider the water on the island subject to the rules which call for the reporting of lakes, streams or canals. See Rule 10D-6.23(2)(a), Florida Administrative Code. In regard to their classifications of surface waters, they are the officials charged under the regulatory scheme with determining when applicants must seek a variance. Applicants must seek a variance when, like Martin, their septic tanks are too close to certain surface waters. See Rule 10D-6.24(4), Florida Administrative Code. Clearly, they determine when a permit will be issued, when an applicant is required to seek a variance, and what waters must be reported on the scale drawing. In the instant case they classified Sleepy Lagoon as protected waters requiring Martin to seek a variance and the water on the is land as unprotected waters not requiring their inclusion on the drawing, because they determined the water was not a lake, stream or canal. The facts show that this water is not a lake, stream or canal. Under the Department's policy a sewage system can only be constructed as drawn and presented in the application for a variance. If the system in question were constructed, it would require the filling of the area where the water is located. The drawing accurately reflects the post-construction situation with the water not shown.
Recommendation The foregoing Findings of Fact and Conclusions of Law show J. Armand Martin did not misrepresent his application; therefore, the facts of the allegation are not proven, and the variance should not be revoked. DONE and ORDERED this 3rd day of April, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 3rd day of April, 1981. COPIES FURNISHED: Barbara Dell McPherson, Esquire Department of HRS 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 Mr. J. Armand Martin 4 Sunset Boulevard Bailey's Bluff Tarpon Springs, Florida 33589
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 By letter dated August 10, 1979, Indian River County (hereafter "County") submitted to the Department of Environmental Regulation (hereafter "Department" or "DER") applications for construction permits for the Gifford Area sewer treatment plant and collection improvements thereto, a domestic wastewater treatment and disposal system located in the County. (DER Exhibits Nos. 1 & 2). After receiving the permit applications submitted by the County, the Department's Orlando District Office requested additional information to determine whether reasonable assurances were provided that the facility would not discharge, emit or cause pollution in violation of Department standards. (Testimony of William Bostwick; testimony of Chancellor; DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The County, through its consulting engineers Sverdrup & Parcel and Associates, Inc., responded to the Department's requests for additional information. (DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The Department presented testimony of two professional engineers in its employ, Mr. William M. Bostwick and Mr. Gerald Chancellor, both of whom were accepted as expert witnesses in the field of sewage treatment technology and the processing and evaluation of permit applications for sewage treatment plants. Both witnesses testified that in their expert and professional opinion, based on their review of all plans, test results and other information submitted by the County, the applicant provided the Department with reasonable assurances that the proposed construction and operation of the sewage treatment facility and its collection system would not discharge, emit or cause pollution in violation of Department standards. (Testimony of Bostwick; testimony of Chancellor). The standards applicable to the subject construction permit applications involve (a) treatment level and (b) ambient standards of the receiving waters. The proposed system provides a minimum of ninety (90) percent treatment to incoming wastewaters. Because of the added features of surge tanks, gas chlorination, and dual blowers and motors, the ninety (90) percent minimum treatment was expected to be exceeded. (Testimony of Bostwick; testimony of Chancellor). The secondarily treated effluent from the proposed sewage treatment plant will be dispersed by spray irrigation. Because the effluent is expected to percolate to area groundwaters, the ambient groundwater standards of Section 17-3.101, Florida Administrative Code are applicable. The discharge from the facility will not cause any violation of the groundwater quality standards of the Florida Administrative Code. (Testimony of Bostwick; testimony of Chancellor; testimony of Aront). Although the design of the plant does not contemplate surfacewater discharge, if it did, it would meet the waste load allocation of Indian River County which permits discharge to surfacewaters. When the treated waste leaves the sprinkler head, it will meet secondary water treatment standards. (Testimony of Bostwick; testimony of Chancellor). In the course of evaluating a permit application for a wastewater treatment plant, the Department considers only Chapter 403, Florida Statutes, and its implementing rules and regulations and does not consider local issues relating to zoning, the propriety of expenditure of public funds or the like. (Testimony of Bostwick). There is presently no state standard regulating permissible levels of viruses in effluent discharged to either surface of groundwaters. Large numbers of viruses exist in the effluent discharged from spray irrigation treatment plants which operate at a ninety (90) percent treatment level. The viruses contained in the discharge remain viable as they percolate through the soil. The greatest concern exists when humans are in physical contact with such discharge. However, the present sewage treatment facility in its existing condition is a greater threat to public health than the proposed spray irrigation system. (Testimony of Dr. Welling, Petitioner's Exhibits Nos. 1, 2 & 3). Research concerning viral standards for effluent discharge is in an experimental stage. The Department is examining this question for possible future rule drafting. Neither the federal government nor any state, with the exception of Maryland, has adopted viral standards. (Testimony of Welling) The design of Use Gifford plant contemplates a series of perimeter monitoring wells through which groundwater samples can be attained and tested for compliance with groundwater standards end the presence of viruses. (Testimony of Aront) The plant will spray irrigate effluent at the rate of one (1) inch per week. Although surface run off is not expected, any that occurs due to heavy rains, etc., will be discharged into a perimeter ditch surrounding the plant. The plant design is formulated to retain effluent on site. (Testimony of Chancellor). There are four (4) different types of soil on the site with a water permeability of moderately rapid to very rapid. These soils have a percolation rate which makes the site suited for the intended purpose provided surface drainage is obtained. On a conservative basis the site could accept up to fourteen (14) inches of water per day or ninety-eight (98) inches per week. (Testimony of Connell; testimony of Eng; DER Exhibit No. 6). The parties stipulated prior to the hearing to the following: The project complies with local zoning laws; and The applicable provisions of law are Sections 403.086, 403.087, 403.088, Florida Statutes, and Rules 17-3.091, 17-4.03, 17-4.07 and 17-4.26, Florida Administrative Code.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department issue a construction permit to the County on condition that sample effluent from the monitoring wells on the subject facility be regularly analyzed for compliance with Department rules and the existence of infectious viruses. DONE and ENTERED this 3rd day of March, 1980, at Tallahassee, Florida 32301. SHARYN SMITH Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 COPIES FURNISHED: Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 George G. Collins, Jr., Esquire Post Office Box 3686 Vero Beach, Florida 32960 Segundo J. Fernandez, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Petitioner should be granted a water pollution operation permit for the Bennett Road Sewage Treatment Facility under Chapter 403, Florida Statutes.
Findings Of Fact Petitioner owns and operates a sewage treatment plant known as the Bennett Road Sewage Treatment Facility in Orlando, Florida. The plant was originally built in the 1950's and its method of treatment has been modified and improved over the years. At the present time, the plant serves about 60 percent of the sewage treatment needs of the city. The sewage is first treated for the removal of biological compounds by means of trickling filters, followed by chemical treatment for removal of BOD, suspended solids, and phosphorus. In the latter process, aluminum sulfate is used, together with a polymer to assist in forming larger particles for more rapid settlement. These processes are followed by final settling, clorination and discharge through an outfall pipe approximately five miles to the Crane Strand Creek and thence to the Little Econlockhatchee River (Little Econ) which meets the Big Econlockhatchee River approximately twelve miles downstream and flows into the St. Johns River twenty- seven miles downstream. About 60 percent of the flow from Crane Strand Creek into the Little Econ is derived from the Bennett Road plant and there is no other significant source of pollutants from the remainder of the discharge. (Testimony of Jewett, Matthes, Petitioner's Composite Exhibits 1,2) In 1973, Respondent's predecessor, the State Department of Air and Water Pollution Control, issued a temporary operation permit to Petitioner, subject to certain conditions, for the Bennett Road plant. The permit was effective until June 1, 1976, "or sooner pursuant to the permittee upgrading his facility to provide 90 percent treatment and obtaining an operation permit in accordance with the rules and regulations of the Department Of Pollution Control." On May 7, 1976, Petitioner submitted an application for an operation permit wherein it was stated that the facility would be abandoned as soon as the Orlando Easterly Regional Facilities were constructed with a new treatment plant to be located in the vicinity of Iron Bridge Road. Respondent's manager of the St. Johns River District advised Petitioner by letter of July 21, 1976, of the Department's intent to deny the application for an operating permit. The reasons given were that (1) available data was insufficient to show sustained secondary treatment as defined in Chapter 403, Florida Statutes, and Chapter 17- 3, Florida Administrative Code; and (2) the facility's discharge caused violation of Section 17-3.09(3), F.A.C. The latter provision establishes one of the criteria for classification of Class III waters and provides generally that the concentration of dissolved oxygen in all such surface waters shall not average less than 5 mg/l in a twenty-four hour period and never less than 4 mg/l. Class III waters are designated in Rule 17-3.09 as "Recreation - propagation and management of fish and wildlife." In its above-mentioned letter, Respondent suggested that the Petitioner apply for a temporary operation permit. Petitioner chose to request an administrative hearing on the proposed denial and did so by petition filed herein on August 5, 1976. At the commencement of the hearing, the parties orally stipulated that Petitioner has been meeting the statutory and regulatory requirements as to secondary treatment so as to warrant withdrawal of Respondent's objection to granting the permit on that ground. The parties also agreed that the only matter remaining in issue is the question of whether Petitioner's discharge violates water quality criteria. (Petitioner's Exhibits 6,7) Petitioner began consideration of the need to replace or expand the Bennett Road plant about 1968. These plans have reached a stage where the Petitioner is now in the process of purchasing land and concluding a planning study required under federal law to construct a regional facility to service the eastern part of Orlando and a few of the northerly communities, including some in Seminole County. Such regionalization of sewage treatment facilities is encouraged by the federal government which provides 75 percent of the funding necessary for construction under Public Law 92-500 . It is anticipated that the proposed facility will be completed in 1980 at which time the Bennett Road plant will cease operations. The regional facility is to be located at Iron Bridge Road and its discharge would flow into the Little Econ several miles downstream of the present Bennett Road discharge. (Testimony of Matthes, Schneider, Petitioner's Composite Exhibit 2) Operation permits have been granted from 1971 to 1976 to a number of sewage treatment plants that will tie-in to the proposed regional facility. These permits were issued even though the discharge of most of the plants did not meet water quality standards. However, practically no secondary treatment plant can meet water quality standards in Central Florida without an extensive mathematical "modeling." These calculations made by Respondent are formulated from surveys of the body of water in question and result in what is termed "a waste load allocation." This term deals with a treatment standard that is computed to ascertain the assimilative capacity of a receiving body of water to take in pollutants from a particular source in order that water quality standards in terms of dissolved oxygen levels may be maintained. The waste load allocation is the standard which the treatment from the source must perform before it can be discharged. None of the above-mentioned plants nor the Bennett Road plant had been provided an assigned waste load allocation at the time of Respondent's adverse action on Petitioner's application. Neither had it been a past requirement of Respondent to require information concerning dissolved oxygen from an applicant in order to issue an operation permit. However, a preliminary survey of the Little Econ had been completed by Respondent by February 1976, and from this, a mathematical model was later computed based on chemical analysis of water samples taken from designated areas in that body of water. In the aforesaid permits that were granted, a clause provided that the plants would have to work with the City of Orlando in resolving discharge problems and cooperate in the achievement of a regional system. Although water quality criteria had not changed in recent years, they had not been enforced because Respondent had had insufficient background water data. At the time Petitioner's permit application was recommended for denial, the primary basis therefor was the fact that the Bennett Road plant had not then reached 90 percent treatment capability over a sustained period. The question of water quality was incidental in view of the fact that that office did not then have the final determination of water quality as evidenced by the intensive survey of the Little Econ and the final math modeling. (Testimony of Jewett, Davenport; Petitioner's Exhibit 4) By interoffice memorandums from the Respondent's Director of the Division of Environmental Permitting to district and subdistrict managers, dated January 28 and April 13, 1976, Subject: Temporary Operating Permits, the said managers were instructed that no operating permits should be issued for any source not achieving secondary treatment of its wastes or not meeting water quality standards. In such cases, only temporary operating permits were to be issued. Further, it was stated in the April 13 memorandum that enforcement action would be initiated against municipal facilities if they were either not achieving 90 percent removal Of BOD and suspended solids or not meeting water quality requirements, and had either (1) not applied for a federal grant, (2) was not following up to ensure receipt of the grant, or (3) had received a federal grant but was not expeditiously accomplishing the grant requirements. It was stipulated at the hearing that the memorandums had not been promulgated as rules by Respondent under Chapter 120, F.S. (Respondent's Exhibits 1, 2, Stipulation) Although the Little Econ is a highly degraded body of water, upstream of the Bennett Road discharge point it has a dissolved oxygen level of over 6 mg/l. After mixture with the Bennett Road discharge, the level drops to about 2 1/2 mg/l. Based upon the intensive survey taken by the Respondent in 1976, it was determined that water quality violations existed below the Bennett Road plant's discharge point but not above that point. It was further determined that the Bennett Road facility was contributing about 89 percent of the oxygen demanding substances in the system. In fact, the dissolved oxygen levels downstream from the Bennett Road discharge reached as low as one milligram per liter at several points. They ranged from that level up to approximately four and one-half milligrams per liter throughout the entire 27 miles of the system. The foregoing was the conclusion of Respondent's environmental specialist based on field data taken on August 30, 1976, at a time of the day when the dissolved oxygen levels would be at their highest. However, the drop in dissolved oxygen level to an even greater extent at certain points occurs in Respondent's mathematical model prediction that does not take into account any discharge from the Bennett Road plant. In fact, in such a "no discharge" situation, Respondent's prediction is that the dissolved oxygen level at points immediately following several control structures in the waters will produce an even greater drop than with the Bennett Road discharge taken into consideration. Although the control structures do not affect the actual oxygen demand on the system, they do increase the residence time of the water and permit substances to settle out. However, when the water flows over the dam, it creates reaeration that increases the oxygen level again. Therefore, although the control structures aggravate the problem, the Bennett Road discharge is in turn further aggravating the situation because some of the pollutants continue downstream. Part of the problem is due to the effect of deposits already on the bottom of the system and it is unknown to what extent they would be eliminated if the Bennett Road facility were taken out of the system. Although it is not anticipated that there would be a great rise in dissolved oxygen levels if the Bennett Road plant discharge were to be discontinued, Respondent's experts are of the opinion that there would be a definite increase in dissolved oxygen levels overall. Further, the field data and model predictions were based on high flow conditions but the 89 percent figure for pollutants from the Bennett Road facility was based on a low flow condition where it would be of more significance. Although the field data showed that at no point in the 27 mile course did the dissolved oxygen level of the water reach state standards of 5.0 milligrams per liter dissolved oxygen for Class III waters, the model prediction with no discharge from the Bennett Road facility shows that the dissolved oxygen level still would not meet state standards under high flow conditions. Under low flow conditions, though, the dissolved oxygen level without discharge from the Bennett Road plant would reach the state standards roughly halfway down the system. High flow conditions are more representative of an average of dissolved oxygen level during the year than under low flow conditions. The Bennett Road plant contributes approximately 60 percent of the total water flow reaching the St. Johns River. Even if the plant were to achieve advanced waste treatment standards, it still would not meet water quality standards. No evidence was presented as to the possibility of Petitioner using alternative methods of waste disposal, such as deep well injection, land irrigation, or the use of lakes and ponds. In fact, no discharge from the Bennett Road plant could be such as to raise the entire stream to meet the state requirement of 5.0 milligram per liter dissolved oxygen. (Testimony of Sawicki, Davenport, Armstrong, Horvath, Brown, Petitioner's Composite Exhibit 2, Respondent's Exhibit 3) An interoffice memorandum of Respondent's Grants section, dated October 28, 1976, pointed out that enforcement action had been shown to be a "great motivator in the area of bringing awareness to governmental agencies of their responsibilities in the field of pollution abatement." The memorandum sought compliance investigations of the various governmental entities within the area where the proposed regional sewage treatment system for East Orlando was to be undertaken, with recommendations that enforcement action be taken in the case of any violations of state standards. The memorandum further stated that enforcement action was already underway against the City of Orlando. The author of the memorandum denied that it was an attempt to force Respondent to proceed more vigorously with the regional system. (Testimony of Schneider, Petitioner's Exhibit 5) The Orange County Pollution Control Board requires variances from its rule that no treated effluent shall be discharged into the surface waters of the county. The Bennett Road plant operates under such a variance and at the present time is meeting county standards for sewage treatment. On May 19, 1976, the Orange County Assistant Pollution Control Director advised Respondent that the Bennett Road plant was meeting current state performance requirements and recommended approval of the operation permit. Although the county maintains records of the Little Econ River at various points, it has not used a mathematical model to determine whether the Bennett Road plant causes water quality violations. (Testimony of Sawicki, Petitioner's Exhibit 3)
Recommendation That the application of Petitioner City of Orlando, Florida for a water pollution operation permit for the Bennett Road sewage treatment facility be denied. DONE and ENTERED this 25th day of May, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Circle East Montgomery Building Tallahassee, Florida Gretchen R. H. Vose, Esquire Assistant City Attorney 16 South Magnolia Avenue Post Office Box 793 Orlando, Florida 32802 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION CITY OF ORLANDO, FLORIDA, Petitioner, vs. CASE NO. 76-1573 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact The Concerned Citizens of West Escambia County, Florida, is an unincorporated neighborhood association begun in the Spring of 1978. It has been concerned with local sewage and flood water problems. Many of the Citizens' members live in the LiFair subdivision abutting the Fairfield Village project on the south. FFV is a 72-unit low income federally subsidized housing project planned for development on a 7.47 acre site. The site is located on the west side of Fairfield Drive between Jackson Street and the Lillian Highway (U.S. 98) in Escambia County. On February 1, 1980, DER issued permit number CS17-25848 for the construction of a dry sewage collection system to serve Fairfield Village. That permit contained conditions 15, 16 and 17 which state: This permit does not authorize the connection of this collection to the Avondale STP. Separate authorization for the actual connection of this col- lection system to the Avondale STP is required from this department. Such authorization shall be applied for by separate letter to the Department. This permit shall not be construed to infer any assurance that the necessary authorization for connection shall be granted. Any such authorization shall be granted only when adequate treatment in accordance with rules, regulations, and issued permits of the Department is available for any flows transported by by the collection system. The system shall be inspected for any sediment debris and flushed prior to connection to the Escambia County sewer system. Subsequently on March 20, 1980, Paul F. McCartney on behalf of FFV requested that the above conditions be lifted as the moratorium on new connections to the ATP had been lifted. On January 1, 1980, C. H. Wigley, Jr., Director of Utilities for Escambia County gave notice that the two-year moratorium on new sewer taps into the ATP was lifted. This action was the result of a planned diversion of approximately 300,000 gallons per day (GPD) from the ATP to the Warrington Treatment Plant. DER on April 1, 1980, gave notice of its intent to remove conditions 15, 16 and 17 from FFV's permit. Petitioner on April 9, 1980, filed its petition for an administrative hearing on DER's proposed action. The anticipated waste water discharge from FFV is approximately 22,000 GPD. As a result of the 300,000 GPD diversion from the ATP to the Warrington Plant, there is more than adequate treatment capacity at the ATP for handling the FFV inflow. The ATP operates under DER permit number TP17-2080 issued on April 4, 1978 and has operated within its designed capabilities of 1,000,000 GPD since August, 1979. There is no showing that a connection of the FFV transmission line to the ATP will cause any violation of the plant's permit conditions. Evidence was presented by Petitioners that sewage lines in the Citizen's neighborhood frequently overflow. There was no showing however that any instance of overflow was caused by the ATP exceeding its operating capacity. It is more likely that their neighborhood sewage problems result from blockages in the transmission lines or result from pump-outages at the lift station between their neighborhood and the treatment plant. No showing was made that the connection of FFV to the ATP would adversely affect sewage collection in the LiFair subdivision. The monthly operating reports submitted to DER by the ATP were shown to be accurate. DER may reasonably rely on them in determining whether the requested permit modifications should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order authorizing the modification of permit number CS17-25848 by eliminating conditions 15, 16 and 17. It is further RECOMMENDED that the Petition of the Concerned Citizens of West Escambia County, Florida, be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this day of 18th of December, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1980. COPIES FURNISHED: Artice L. McGraw, Esq. CETTI & McGRAW 26 East Garden Street Pensacola, FL 32501 P. Michael Patterson, Esq. 26 East Garden Street Pensacola, FL 32501 William W. Deane, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Alan C. Sheppard, Esq. EMMANUEL SHEPPARD & CONDON Seventh Floor, Century Bank Tower Post Office Drawer 1271 Pensacola, FL 32596
Findings Of Fact On or about December 28, 1987 Hy Kom filed with the Department an application for a permit to construct a .0126 MGD Advanced Waste Water Treatment Plant on Emerson Point, Snead Island in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Terra Ceia Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Tampa Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Manatee River in Manatee County. The waters of Terra Ceia Bay have been designated Outstanding Florida Waters (OFW) by the Department. On or about April 27, 1989 the Department issued a Notice of Permit Denial concerning Hy Kom's permit application. The parties stipulate the Intervenor, Manasota-88, has standing to intervene as a party Respondent and to object to the issuance of the permit. Petitioner's evidence can best be summarized by what was not submitted. First, the expert witness called to identify the application had not prepared any part of the application or verified any of the studies presented therein. Similarly Petitioner's expert on the proposed treatment plant did not testify that Petitioner was committed to using this plant, or that the construction of the plant and the operation of the plant would comply with statutory and rule requirements. The only witness called by Petitioner to testify to the effect the discharge from the proposed advanced waste water treatment plant would have on the receiving waters was also Respondent's expert; and this witness testified that the effluent discharge from this proposed plant would have an adverse effect on the receiving waters, would seriously degrade the receiving waters as a nursery habitat for both crustacea and fishes endemic to the area, and that no reasonable assurances that this would not happen were ever presented by the Petitioner. This witness further testified that no discharge into these receiving waters would be acceptable not only because of the nitrogen level (which was the most significant reason for denying the permit) but also because even a discharge of absolutely pure water would upset the salinity of the receiving waters at the critical time the receiving waters act as a marine nursery.
Recommendation It is RECOMMENDED that a Final Order be entered denying the application of Hy Kom Development Company, for a permit to construct and operate an advanced waste water treatment facility at Emerson Point, Snead Island, Manatee County, Florida. DONE and ORDERED this _15th_ day of September, 1992 in Tallahassee, Leon County, Florida. COPIES FURNISHED: JAMES W. STARNS ESQ 501 GOODLETTE RD SUITE D-100-24 NAPLES FL 33940 W DOUGLAS BEASON ESQ ASST GENERAL COUNSEL K. N. AYERS 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 _15th_ day of September, 1992. DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 THOMAS W REESE ESQ 123 EIGHTH ST N ST PETERSBURG FL 33701 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER SECRETARY DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD 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.
Findings Of Fact On September 16, 1983, respondent/applicant, Brevard County (County), filed an application for a permit with respondent, Department of Environmental Regulation (DER), seeking authorization to modify and expand its Fortenberry Road wastewater treatment plant from 0.80 million gallons per day (MGD) to 1.40 MGD, which is designed to provide treatment necessary to meet effluent limits based on receiving water quality. The facility is located on Fortenberry Road in Merrit Island, Florida, and is classified as a Class B, Level II treatment plant. On October 14, 1983, DER acknowledged receipt of the application, plans and related material and requested certain additional items to be filed within 30 days. These items were subsequently submitted by the County. On or about January 11, 1984 DER issued its proposed agency action in the form of a draft permit wherein it gave notice that it intended to issue Permit/Certification No. DC0S-75483 and authorize the proposed activity subject to fifteen general and ten specific conditions. These are set forth in detail in the draft permit which has been received in evidence as DER Exhibit 2. Generally, the permit would authorize the County to construct ". . .a 1.40 MGD design activated sludge wastewater treatment plant with chemical additives, a tertiary sand filter, disinfection by chlorination and effluent disposal to a drainage canal and thence to Newfound Harbor." The permit will expire on July 15, 1985. On January 18, 1984, notice of intended agency action to issue the permit was published by the County in Today, a newspaper publication in Brevard County. Upon reading that notice, petitioners, Craig Zabin, Judy Ryan and Robert B. Sampson, all homeowners in Merritt Island, filed petitions requesting a hearing to contest the permit. In their petitions, petitioners generally contended the proposed construction would result in the discharge of effluent containing toxic substances into an Outstanding Florida Water (Newfound Harbor) in violation of Rule 17-4.242, Florida Administrative Code, that the plant has no operating permit, that the plant has violated "discharge standards" for the last three years, and that the plant's present discharge is harmful to human health and aquatic life in violation of various DER rules. The draft permit indicates that the plant effluent will continue to be discharged into a ditch which eventually intersects Newfound Harbor. At that point the Harbor waters are classified as Class III waters within the meaning of Chapter 17-3, Florida Administrative Code. A portion of the Harbor, well to the south of the discharge point, is classified as an Outstanding Florida Water. Uncontradicted expert testimony established that the discharge would not have an impact that was technically measurable on the portion of Newfound Harbor classified as an Outstanding Florida Water. At the present time the County has no valid temporary operating permit (TOP) or operation permit authorizing the operation of the Fortenberry Plant. Although the County applied for such a permit, DER has issued a notice of intent to deny the most recent application for a TOP and that case remains pending before the Division of Administrative Hearings (Case No. 82-2850) According to Specific Condition No. 9 of the draft permit, the County must meet the following flow requirements: 9. Initial flows shall be limited to 1.0 MGD. Additional flows, in the 0.10 MGD increments, may be authorized upon receipt of written assurance from the permittee, based on actual test data, that the treatment plant will achieve the required level of treatment at such higher flows. Therefore, upon completion of construction activities, the County will be authorized a maximum flow of 1.0 MGD at the facility which is a 0.20 MGD increase over the most recently expired TOP. This approximates the current average flows of almost 1.0 MGD. Additional increases, in increments of 0.10 MGD, may be earned by the County by demonstrating with test data that the plant will continue to comply with the effluent limitations established by Specific Condition No. 10 of the draft permit. 2/ The latter limitations are based on a waste load allocation study that was completed in the late 1970s. The draft permit does not increase the allocation of the plant--rather the limits are the same that were formulated when the waste load study was originally completed. The existing facility consistently violates the limits of its allocated waste load. Construction of the additional treatment systems should bring the effluent from this plant into compliance with its waste load allocation. The amount of nitrogen, phosphorus and total suspended solids contributed to Newfound Harbor will be significantly reduced if the additional treatment facilities are constructed. Failure to improve and expand the existing facility will result in the plant continuing to contribute the same poor quality effluent to the waters of Newfound Harbor. Testing by the Department and the County has revealed the presence of high levels of lindane and malathion in the plant's effluent. These substances are spawned by insecticides and are highly toxic to aquatic organisms and invertebrates. Despite considerable investigation by the County, the source of these toxic chemicals is not known. The County is now a party to an enforcement action instituted by the Department on February 28, 1983, and it is in that proceeding, rather than the case at bar, that the appropriate steps to rid the effluent of these prohibitively high levels of malathion and lindane should be determined. In this regard, the Department has represented that it will take all reasonable steps in the enforcement action to insure that the toxic chemicals are eliminated or reduced to tolerable levels by the County, including the requirement that specially designed improvements be made to the plant. 3/ This action should be completed at the very earliest possible date since additional flows from the plant may be authorized at a later date thereby increasing the amount of toxic chemical discharge assuming all other variables remain constant. While the petitioners' concerns about the chemicals are well- founded and legitimate, the issuance of the permit should not be delayed since the plant is currently violating its wastewater load allocation and polluting the waters of Newfound Harbor. The applicant has provided reasonable assurance that the proposed construction would comply with the standards of Chapter 17-6, Florida Administrative Code, and not emit or cause pollution in contravention of Department standards or rules. Such assurances were not controverted by petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be issued to Brevard County for its Fortenberry Plant in accordance with the terms and conditions of the draft permit. DONE and ENTERED this 4th day of April, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of April, 1984.
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.
