Findings Of Fact The applicant, Island Village Condominiums, prepared and submitted to the Department of Environmental Regulation a completed application for construction of its extended aeration sewage treatment plant. The relative distance and direction from the proposed treatment plant to major bodies of surrounding surface water are depicted in an aerial photograph which accompanied the application. The elevation of the surrounding waters in all directions is 39 feet. When the treatment plant is operated in compliance with its design features, the effluent from the plant will exceed the Department's standards for effluent discharge. The zone of discharge will be confined to the owners' property. Surface waters will not be involved in discharge. There will be no adverse impact upon ground waters. The treatment plant would not create a hazzard to the deep water wells of Point O' Woods Utilities, Inc. The treatment plant, as designed, meets or exceeds the engineering standards established by the Department. The likelihood of geologic subsurface failure is remote. Ground water levels are included on the schematic plan which accompanied the application to the Department. The tops of the holding ponds are above the 100-year flood level. The treatment plant will produce no noticeable odor. No exterior lights are to be used with the plant. The noise from the plant's operation would not travel more than 200 feet. The holding ponds would be more than 120 feet from the nearest surface water. The estimate of the cost is accurate at $98,000. Martin I. Gunn, Inc., is the developer of the property, which is also owned by the corporation, Island Village Condominiums, also known as Island Village of Inverness. The treatment plant will become the property of the home owners association and will be operated by the association from maintenance fees paid by the home owners. Martin I. Gunn/Island Village is not a public utility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the permit for the construction and operation of an extended aeration sewage treatment plant be issued to Island Village Condominiums subject to the general and specific conditions stated in the Department's original notice. DONE and ORDERED this 19th day of February, 1982, 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 19th day of February, 1982. COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer. B Winter Park, Florida 32790 Donald F. Perrin, Esquire New Bank of Inverness Building Highway 41, South Post Office Box 1533 Inverness, Florida 32650 William W. Deane, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria J. Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . will comply with the provisions of this part and applicable rules promulgated thereto . . . and will not be harmful to the water resources of the district"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
Findings Of Fact During 1990, Respondent/Applicant, City of Lynn Haven, filed several applications with the Respondent, Department of Environmental Regulation, seeking the issuance of several permits to build a wastewater collection system and a two million gallon per day advanced wastewater treatment (AWT) plant. The proposed facility is intended to replace the wastewater treatment facility currently being used by the City of Lynn Haven. After a review of the applications the Department proposed several Intents to Issue covering the different aspects of the proposed projects. The Intents to Issue included: A) a variance and dredge and fill permit, pursuant to Sections 403.201, 403.918, 403.919, Florida Statutes, and Rule 17-312, Florida Administrative Code, authorizing a subaqueous crossing of North Bay (Class II waters) and installation of a force main (permit #031716641), B) a collection system permit, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-600 and 17-604, Florida Administrative Code, for the installation of approximately 11 miles of pipe from North Bay to the proposed treatment plant, C) a dredge and fill permit #031785181, pursuant to Sections 403.918, 403.919, Florida Statutes, and Rules 17-4, 17-312, Florida Administrative Code, authorizing 10 incidental wetland crossings associated with the collection system, and, D) a construction permit #DC03-178814, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-302, 17-600 and 17-611, Florida Administrative Code, authorizing the construction of a 2.0 mgd wastewater treatment plant. Sand Hill Community Improvement Association challenged the Department's Intents to Issue. The Sand Hill Community Improvement Association (Sand Hill) is an association composed of 74 formal members plus numerous supporters. Both members and supporters are residents who live near the site of the proposed Lynn Haven sewage treatment plant. They are sufficiently close to the plant site that construction of the proposed project could impact their property. The members are very concerned about any threat of pollution to the aquifer from the proposed plant since all of the members are dependent on private wells for their drinking water. Additionally, members of the association use the proposed site, as well as the associated wetlands, Burnt Mill Creek and the nearby lakes, for a variety of recreational purposes, including hunting, fishing, hiking, bird-watching, boating and swimming. Given these facts, the Association has standing to challenge the Department's Intents to Issue involved in this case. The City of Lynn Haven is located on a peninsular section of the south shore of North Bay and, except for its connection to the land, is surrounded by environmentally sensitive Class II or Class I waters. Lynn Haven's existing wastewater treatment plant was poorly designed, has not worked properly, and is old and outdated. The plant is permitted to treat up to 950,000 gallons per day. However, the existing plant is currently exceeding its originally permitted treatment limits and is treating in excess of 1,200,000 gallons per day. The sewage only receives secondary treatment, Secondary treatment is the minimum state standard for wastewater treatment. The secondarily treated wastewater is pumped several miles to a spray irrigation site located in the eastern portion of the City. The sprayfield site has never worked properly due to a high groundwater table and a confining layer of soil, both of which prevent the effluent from percolating into the ground. Because the sewage effluent cannot percolate into the ground, the existing operation frequently results in direct runoff into a ditch which empties into North Bay, a Class II waterbody. Such discharge of wastewater effluent into Class II waters is prohibited by Department regulations. 1/ At this time, the existing wastewater treatment facility is in violation of both DER and EPA standards and is under enforcement action by both agencies. The existing facility is currently operating without a permit and the Department has advised Lynn Haven that the existing facility as it now operates can not be permitted. In fact, all the parties agree that the City is in serious need of a wastewater treatment facility which works and does not pollute the environment. However, the parties disagree over the method by which proper wastewater treatment could be accomplished by Lynn Haven. Since 1972, the City, through various consultants and with the aid of DER, has reviewed approximately 40 alternatives for wastewater disposal. After this review, the City of Lynn Haven selected the alternative which is the subject of this administrative hearing. The alternative selected by the City of Lynn Haven consists of the construction of a proposed advanced wastewater treatment (AWT) plant and distribution system. The new plant will be on a 640 acre parcel of property located approximately 12 miles north of Lynn Haven. The location of the new plant will necessitate the rerouting of the wastewater from the old plant to the new plant by construction of a new transmission line approximately 12 miles north of the City across North Bay and parallel along State Road 77. 2/ The treatment process proposed for use in the new AWT plant is known as the AO2 process. The process is patented. The AO2 treatment process primarily consists of biological treatment with settling and filtration. The treatment process also includes a chemical backup treatment to further reduce phosphorus if necessary. The evidence demonstrated that this type of facility has been permitted by the Department in at least five other wastewater facilities throughout the state. The treatment facility will have a two million gallon per day, lined holding pond on site for the purposes of holding improperly treated wastewater for recirculation through the proposed facility. Any excess sludge generated by this treatment process would be routed to lined, vacuum-assisted, sludge drying beds. The sludge would then be transported offsite to a permitted landfill for disposal. The evidence demonstrated that this treatment process would not produce any objectionable odors. Once the wastewater is treated, it will be disinfected by chlorination to eliminate pathogens. The chlorination process is expected to meet state standards. After chlorination, a dechlorination process would occur to remove any chlorine residuals which would have a harmful affect on the environment. The treated wastewater would then be re-aerated and discharged through the distribution system indirectly into a wetland located on the 640 acre parcel of property. The quality of the treated wastewater is expected to meet the advanced wastewater treatment (AWT) standards. These standards are five milligrams per liter total suspended solids (T.S.S.), five milligrams per liter BOD, three milligrams per liter nitrogen (N), one milligram per liter phophorus (P). Ph will be in the range of six to eight units on an average annual basis and can be adjusted up or down if necessary to meet the ph levels of the ecology into which the wastewater ultimately flows. This effluent quality is approximately five times cleaner than secondarily treated effluent. Additionally, as a condition of the draft permit, the proposed facility would be operated by a state-licensed operator and would be routinely monitored to insure that the treated wastewater effluent meets advanced wastewater treatment standards. Given these facts, the evidence demonstrated that the applicant has supplied reasonable assurances that the plant will perform as represented and that the effluent will meet the state standards for advanced wastewater treatment. As indicated earlier, the site for the proposed AWT plant contains approximately 640 acres and is located approximately 12 miles north of Lynn Haven in an area known locally as the Sand Hills. The City specifically purchased this parcel of property for the construction of the proposed wastewater treatment plant. The plant itself would be located in the northeast corner of the property. The 640 acre site was previously used for silviculture. The entire area is currently planted in pines except for a low area that is dominated by a pristine, woody wetland system of titi. The titi wetland is approximately 212 acres in size and generally runs through the center of the property from the northeast to the southwest. The wetland is low in acidity, with an estimated ph between 4 and 5. The site consists of hilly, mineralized soils. The soils within the forested wetland are organic in nature. Based on the evidence at the hearing, there does not appear to be any significant confining layers of soil which would prevent the treated wastewater from percolating in the soils and draining towards the wetland and ultimately into Burnt Mill Creek, a Class III waterbody. Once the effluent leaves the plant, it would go through a distribution system. The proposed distribution system will consist of six, 500 foot long, 12 inch diameter perforated pipes. Each 500 foot section of pipe has 100 one and one-half inch orifices which will discharge the treated effluent onto an eight foot wide concrete pad. This concrete pad will dissipate the effluent's energy, prevent erosion at the orifice site and insure that the effluent sheetflows onto and eventually into the sandy soils of the plant site and ultimately into the receiving wetland. The distribution pipes are located around the east, north and western portions of the receiving wetland and are variously set back from the receiving wetland approximately 80 to 200 feet. The distribution system is designed with valves to allow for routing of flow to different branches of the system if it is determined through long term monitoring that there is a need to allow for any of the receiving wetland to dry out. None of the distribution branches are located in any jurisdictional wetlands of the State of Florida. The receiving wetland will receive a hydraulic loading rate of approximately 1.8 inches per week once the new advanced wastewater treatment plant is operating at capacity. Both the surface waters and groundwaters on the 640 acre parcel flow from northeast to southwest across the property. The evidence clearly demonstrated that any treated wastewater discharged on the site would move down hill by surface or groundwater flows towards the wetlands in the central portion of the property and eventually discharge into Burnt Mill Creek located at the southwest corner of the parcel. The evidence demonstrated that it would be highly unlikely for the surface or groundwater to move in any other direction and would be unlikely for the surface or groundwater to move towards any residents located to the north or east of this parcel. Evidence of the topography and its relatively sharp gradient clearly demonstrated that the treated wastewater discharged in the northeast corner of this site would not result in any significant still water ponding and would exit the site at the southwest corner of the property in approximately 14 hours. The evidence did demonstrate that, depending on the wetness of the weather, there may likely be certain times of the year when a flowing type of ponding would occur. However, this wet weather ponding was not shown to be of a duration which would impact to a significant degree on the flora and fauna of the area or increase the number of disease bearing mosquitoes in the area. As indicated earlier the treated effluent from the proposed AWT plant will flow into Burnt Mill Creek. Burnt Mill Creek will ultimately carry the treated wastewater approximately 11 miles down stream to North Bay. The City can directly discharge up to two million gallons per day of AWT water into Burnt Mill Creek without violating state water quality standards. Therefore, the volume of wastewater discharged into Burnt Mill Creek should not have significant impacts on surface and ground water quality. Moreover, Chapter 17-611, Florida Administrative Code, authorizes the discharge of up to 2 inches per week to receiving wetlands provided wastewater is treated to AWT standards. The evidence demonstrated that this rule was developed as an experimental effort to determine if wetlands could be appropriate areas for wastewater effluent to be either discharged or treated. These state limits were intended to be very conservative limits and were designed to insure that the impacts to receiving wetlands would be minimal. The evidence and testimony demonstrated that the receiving wetland system involved in this case should not be adversely impacted beyond those limits set forth in Section 17-611.500, Florida Administrative Code, for flora, fauna, macroinvertebrates, fish or vegetation and will meet all standards set forth in Chapter 17-611, Florida Administrative Code. However, it should be noted that the wetland/wastewater program is highly experimental and very little is known about the actual impacts of wetland/wastewater systems since facilities similar to the one proposed by Lynn Haven have not yet been placed in service. The evidence did show that there would be some long term impacts to flora and fauna in the wetland area primarily due to ponding, changed ph and the introduction of nutrients and pollution in the form of the effluent. However, the regulation does allow for some change within a receiving wetland and the evidence did not demonstrate that these changes would be significant or detrimental. Petitioners' own witness concluded that other deep wetland treatment systems are doing a very good job in meeting state water quality standards. Although Petitioners' expert noted potentially adverse impacts to flora and fauna from other wastewater treatment systems, these other systems were slow moving, impoundment-type systems that are not similar to the wastewater/wetlands system proposed by the City of Lynn Haven. The Lynn Haven system is designed for percolation and sheetflow, not ponding. Though there should be some expected changes, no evidence was provided that the receiving wetlands for the Lynn Haven facility would be affected to the extent there would be violations of any standard as set forth in Chapter 17-611, Florida Administrative Code. In essence, the legislature has determined that such experimentation with wetland areas is appropriate, albeit, even with the conservative limits of DER's rule, may prove to be a mistake. This facility is designed to fit within that rule and in fact is probably the best technology available for use in a wetland/wastewater situation. Finally, in order to avoid any potential impacts on the area which may over time become significant an approved monitoring program for surface water quality and affects on flora and fauna, as well as a groundwater monitoring program are required as conditions of the permit. The groundwater monitoring program has been designed to monitor any potential long term impacts to groundwater. With these protections there should not be any significant adverse impacts to surface or groundwater quality and the applicant is entitled to a construction permit for the AWT plant and distribution system. Lynn Haven's sewage would reach the proposed AWT plant through a transmission line. The transmission line would run from Lynn Haven's existing wastewater treatment plant across North Bay and through the unincorporated area of South Port. The Southport area is not sewered and utilizes individual septic tanks for its sewage. The transmission line would be constructed entirely in state road right-of-way. The line would terminate at the 640 acre site described above. A new, variable speed pumping station would be constructed adjacent to the old wastewater treatment plant. From this pump station, a 24 inch line would be constructed on City right-of-way up to the south shore of North Bay. At this point, the transmission line would be reduced in size to 20 inches and would be embedded approximately three feet below the Bay bottom. An additional variable speed pumping station would be located approximately half way along the 12 mile route of the transmission line to insure adequate pressure to pump wastewater to the new wastewater treatment plant. The pumps are to be employed to insure that the wastewater is continuously pumped uphill to the new site so that waste does not set, become septic, and create odor problems. The pumps are equipped to provide for chemical control of odor if necessary. Also, as a condition of the permit, the pumping stations are required to have backup power supplies should power be lost to the stations. The pumping stations and backup power supplies are to be tested monthly and the pumps are required to be continuously monitored by radio telemetry to insure they are operating properly. Additionally, the City of Lynn Haven will be required, as a condition of the permit, to visually inspect the entire length of the wastewater transmission line three times per day. The portion of the transmission line which would cross North Bay is approximately 3000 feet in length and would be constructed of high density polyethylene pipe (HDPE) with a wall thickness of one and one-half inches. HDPE pipe is used to transport materials such as hazardous wastes where leakage is not permissible. This type of pipe is virtually inert in that it is highly resistant to corrosion and other chemical reactions. It is also impact resistant and has a very high tensile strength. The pipe comes in 40 foot segments and is heat welded (fused) together. This type of joint significantly reduces the chance of any leakage. In fact, leakage around pipe joints is more likely to occur with other types of pipe and pipe connections. HDPE pipe is currently carrying wastewater across Watson Bayou in Bay County, Florida. 3/ There have been no reported problems with leaks or breaks occurring in the pipe crossing Watson Bayou. Given these facts, the probability of the proposed HDPE pipe leaking or breaking is extremely low, albeit not impossible, and such pipe appears to be the best material available for constructing a wastewater treatment transmission line across protected waters of the State. As a condition of the construction permit, the portion of the transmission line crossing North Bay will be required to have isolation valves at each end so that the pipe may be completely isolated in the event that it needs repair. The underwater portion of the line would be visually inspected by a diver twice per year and the line would be pressure tested before being placed into service. Additionally, pressure tests would be performed once a year. The construction permit also requires Lynn Haven to periodically inject dye into the proposed transmission line to check for any small leaks that may not otherwise be detected. Finally, the HDPE pipe would also be equipped so that television cameras could be inserted into the pipe to routinely inspect the interior of the pipe. In the event the HDPE portion of the transmission line would need to be repaired, the line could be immediately, temporarily repaired by a dresser coupling. A permanent repair could then be made in less than 24 hours once the material and equipment were staged at the site. The City intends to locally stockpile all necessary parts and equipment to effect any required repair to prevent any delay beyond four days. Permanent repairs would be accomplished by floating the line to the surface. The area needing repair would be cut out and a new section would be put in place by heat fusion. The line would then be pressure tested to insure the absence of leaks and placed back into service. During this process, the line would be taken out of service by the isolation valves and flow would be diverted to the eight million gallon holding ponds at the City of Lynn Haven's existing facility. These holding ponds can hold four days worth of wastewater from the City of Lynn Haven. Lynn Haven is required, as a condition of the construction permit, to have this reserve capacity as well as have a contractor on standby to make any repairs in the event such repairs are necessary. All of the technical specifications for the transmission system and the operating conditions imposed on it are designed to insure that the system does not fail or develop any leaks which could impact receiving waters, including North Bay. Given the permit conditions, the required inspections for leaks, the sound engineering design and quick repair methods proposed, the evidence demonstrated that the probability of any leak occurring in the portion of the transmission line crossing North Bay is extremely low and that if such a leak does occur any potential harm to the environment will likely be limited and quickly eliminated. The evidence demonstrated that the design of the transmission line and permit conditions provide reasonable assurances that the transmission line will meet or exceed the Department standards set forth in Chapter 17-604, Florida Administrative Code. Therefore, the applicant has provided reasonable assurances that the transmission line/collection system will not violate Department standards or rules and the applicant is entitled to a permit (permit #CS03-178910) for the proposed collection system. In addition to requiring a construction permit/collection system permit for the wastewater transmission line, the line will also require dredge and fill permits and a variance for crossing waters of the state. There are ten incidental crossings of state waters and one major crossing o f North Bay. Of the ten incidental crossings, two are over small creeks (Scurlock and Little Burnt Mill) These two incidental creek crossings will be accomplished by placing the transmission line (ductile iron pipe) on top of pilings placed in the water. Best management practices such as turbidity curtains and other erosion control practices are proposed and required by the permit to minimize construction impacts on water quality. The only impacts to wetland resources would be from the placement of the pilings. The evidence demonstrated that any impact would be minimal and not significant. The evidence did not demonstrate that the aerial crossings would have any long term water quality or environmental impacts. The remaining eight incidental crossings of waters of the state consist of small, seasonally wet ditches which would be traversed by trenching and burying the transmission line. Again, turbidity controls such as curtains and hay bales would be employed to protect water quality. The evidence did not demonstrate that any significant long term or short term impacts to resources of the state would occur. The evidence did demonstrate that the applicant has provided reasonable assurances that water quality standards would not be violated in regards to these 10 incidental water crossings. Likewise, the evidence demonstrated that the construction of these 10 incidental water crossings would not be contrary to the public interest. Therefore, the applicant is entitled to issuance of a dredge and fill permit (permit #031785181) for these 10 water crossing. However, a much harder question arises in relation to the dredge and fill permit and the variance required for the 3,000 foot segment of the wastewater transmission line which crosses North Bay. Pursuant to Rule 17- 312.080(7), Florida Administrative Code, permits for dredging and filling activity directly in Class II waters which are approved for shellfish harvesting by the Department of Natural Resources (DNR) shall not be issued. The reason for the rule is that any pollution caused by dredging and filling and, as in this case, the permanent placement of a sewage pipe in food producing waters could potentially have catastrophic effects on more than just the environment but on local employment in the shellfish industry and the quality of food available to the State. Put simply, the Department has determined by enacting its Rule that the public interest in food producing waters far outweighs any other consideration or criteria under Sections 403.918 and 403.919, Florida Statutes, in determining whether dredging and filling should take place in Class II, shellfish waters. In other words, it is not in the best interest of the public to allow dredging and filling so that a pipe carrying raw sewage can be placed in shellfishing waters. However, irrespective of this determination, the Department believes that, pursuant to Section 403.201(1)(c), Florida Statutes, it may grant a variance from its rules to relieve a hardship. As indicated earlier, North Bay is a Class II waterbody, conditionally approved for shellfishing. North Bay, therefore, falls within the Rule's prohibition against dredging and filling in Class II waters and the City is required to demonstrate the presence of a hardship in order to vary the Rule prohibition and obtain a dredge and fill permit for the North Bay crossing. On issues involving variances, the Department employs a two step analysis. The first part of the analysis is whether a hardship is present and the second is whether, if the variance were granted, would it result in permanent closure of Class II shellfish waters. The Department correctly recognizes that the question of whether a hardship exists is a question of fact and is determined on a case-by-case basis. Surprisingly, in a kind of "what we don't know can't hurt" posture the Department reviews a request for a variance standing alone based on the application as it is presented and does not require analyses of other possible alternatives to the granting of a variance. However, the existence of any alternatives, costs of any alternatives, timeliness of any alternatives, problems with any alternatives, whether an alternative represents a short term or long term solution to a given problem and the implementability of any of the alternatives are all factors utilized by the Department in determining whether or not to grant a variance. The Department's policy of non- review makes no sense, either factually or statutorily, when the Department is faced with varying a prohibition it created in its own rules. Similarly, the Department's policy of not requiring other alternatives to be examined before granting a variance goes against the fact that an applicant has the burden to establish entitlement to a permit and, in the case of a hardship variance, that a hardship exists because reasonable alternatives to granting a variance are not available. 4/ Likewise, the second part of the Department's hardship analysis relating to the permanent closure of shellfishing waters makes no sense given the fact that a non-permanent closure of shellfishing waters may have the same or just as serious effect on employment in the shellfishing industry, the loss of income due to an inability to earn a living in that industry and health risks posed by contaminated seafood. Temporary loss of income or a livelihood can, for all practical purposes, have consequences to the persons directly affected by a temporary closure of shellfishing waters similar in nature those caused by the permanent closure of shellfishing waters. The same can be said for health risks posed by a contaminated food supply. Rule 17-312.080(7), Florida Administrative Code, does not contain any exceptions for the temporary closure of shellfish waters. Nor is the rule limited to instances of permanent closure. Permanent closure is simpy not required in order to support a hardship under Section 403.201, Florida Statutes. Moreover, neither step in the Department's two-step analysis is included in any Rule promulgated by the Department. 5/ Without such a Rule, it is incumbent upon the Department or the applicant to demonstrate the underpinnings for this non-rule policy. No such evidence was presented at the hearing. In fact, the evidence presented at the hearing affirmatively demonstrated that the Department's non-rule policy violated both its own rules and the statute under which it is trying to proceed. As indicated, the issue of hardship is a question of fact and involves a weighing of all the facts and cicumstances involved in this project. In this case, there are shellfishing areas located close to the proposed location of the transmission line. North Bay is sometimes closed to shellfish harvesting by the Department of Natural Resources. These closures generally occur during wet weather conditions and are due to stormwater runoff and the failure of septic tanks in Southport. 6/ Additionally the current Lynn Haven system also contributes to the closure of North Bay. No competent, substantial evidence was provided that issuance of the permit and variance would result in the permanent closure of shellfish waters. The location of the proposed transmission line would be several hundred feet west of the Bailey Bridge embedded in the Bay floor. 7/ The proposed alignment of the transmission line through North Bay is in an area which is relatively biologically unproductive. The proposed placement of the transmission line avoids the few grassbeds that exist in the nearshore shallow areas except for approximately 200 square feet of grass. During construction of the line, these grasses would be removed immediately before the line is placed in a trench and then would be promptly replanted in the same area. The evidence demonstrated that the affected areas of grass should be able to reestablish itself. The evidence further demonstrated that there would not be any long term adverse impacts to these aquatic resources and there should not be any significant long term impacts on the balance of any aquatic life which may exist on the bay bottom. Water quality during construction will be protected by use of turbidity controls to control sediments. Therefore, any short term impacts on aquatic resources are likely to be insignificant. Concerns about long term adverse impacts to Class II waters are greatly reduced by the type of pipe and conditions in the permit which require that the transmission line be routinely inspected and tested to insure that there is no leakage and that in the unlikely event the line should need to be repaired, the line could be easily isolated and quickly repaired. The evidence showed that, to completely avoid Class II waters, the line could be moved several miles to the west or east of the line's proposed location or be placed over or under the Bay. If the line was moved west to the extent that it was in Class III waters, it would be over 40 miles long and would more than double the cost of the project. If the line was moved several miles to the east, it would go through the Deer Point Lake Watershed. The watershed is a Class I water supply for Bay County. Clearly, moving the line either west or east is not practical nor realistically feasible. Tunneling under North Bay would be very risky and is not technically feasible. The length of the tunnel would require steel pipe to be used. If tunneling could be done at all steel pipe would not provide the level of protection afforded by the HDPE pipe proposed by Lynn Haven. Placing the transmission line on pilings for an aerial route over North Bay is uneconomical and would create a potential hazard to navigation. Moreover, an aerial crossing would not solve any pollution problems should the transmission line leak or break and would also still involve a variance request since it would be necessary to dredge and fill in Class II waters for the placement of pilings or supports. Put simply, the evidence, showed that there was no realistic way to avoid Class II waters in North Bay given the location of the proposed wastewater treatment facility. A location which the City knew would require a hardship variance from the rule prohibition of dredging and filling in Class II, shellfishing waters. A hardship which the City created by site selection and which it hoped to overcome by strenuous permit conditions and futuristic speculative benefits to unsewered areas of the County. The existing treatment facility is operating in violation of both EPA and DER requirements, has been issued a notice of violation, is nonpermitted and is destined to be operating under a consent order. The system is hydraulically overloaded, handling approximately 1.2 million gallons per day while its rated capacity is 950,000 gallons per day. Refurbishing Lynn Haven's existing wastewater treatment facility would not be viable since the plant has outlived its useful life, is of a very poor design and probably could not be made to function within Departmental standards and water quality standards. The existing sprayfield does not function and results in overland flow of effluent which discharges to Class II waters. The high water table and presence of a semiconfining layer on the Lynn Haven peninsula virtually guarantee such discharges. Further, the plant only provides secondary treatment. Put simply, Lynn Haven needs another method of handling its sewage. The only remaining alternative to a Bay crossing is to tie into the existing Bay County system and any AWT wastewater treatment plant Bay County may build in the future. 8/ The existing Bay County system provides at most only secondary treatment. The Cherry Street facility, which is part of that system, functions essentially as a lift station rather than a treatment facility. The Military Point Lagoon portion of the system is nonpermitted and is operating under a consent order and has been the subject of enforcement action. The Department has an extensive agreement with Bay County requiring a significant and long term series of actions to deal with their wastewater treatment system. The modifications or improvements to the Bay County system to provide advanced treatment are not imminent and the final system conditions cannot now be determined as they will depend in large measure upon data and analysis remaining to be collected. Currently, the existing Bay County system processes a significant amount of industrial discharge and has a problem with phenols most likely due to industrial waste from two discreet industrial facilities in the County. 9/ However, all of Bay County's wastewater system problems are reasonably solvable and will be corrected in the near future, if they have not already been corrected. Additionally, the amount of sewage Lynn Haven would be sending into the current Bay County system probably would not significantly impact that system and its problems or the County's ability to solve those problems. The County is willing to accept Lynn Haven's sewage into its system and future AWT system. The connection into Bay County's system is a viable alternative currently in existence. Moreover, as indicated, Bay County has a long range plan to build an advanced wastewater treatment plant. As yet the plan remains "just a twinkle in the County's eye" and has not progressed to the design stage. However, this plan, of necessity, will eventually become reality in the next 5 to 10 years. The estimated cost to a Lynn Haven user for the Bay County conceptual system will be $25.00 per month in lieu of $15.00 for the proposed Lynn Haven system. These estimates are at best speculative. However, this cost estimate is not excessive given the fact that a Lynn Haven user lives in an environmentally sensitive area and a Bay County hook-up would eliminate the need to run a sewer pipe through food producing, Class II waters. 10/ Based on these facts, the evidence demonstrated that it was feasible for Lynn Haven to hook into Bay County's wastewater system without creating any more environmental impacts than that system is already experiencing and must solve and which, to a significant degree, have already been solved by Bay County. Given the existence of this alternative to crossing food producing waters and the fact that any future benefits are just as likely to be provided just as quickly by the County through AWT facilities, the applicant has failed to demonstrate the necessity for crossing North Bay and failed to demonstrate entitlement to a hardship variance for that crossing. Therefore, the applicant is not entitled to either a dredge and fill permit or variance for the proposed North Bay crossing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, recommended that the Florida Department of Environmental Regulation enter a final order issuing permit applications CS03178910, DC03178814, and 031785181, and denying the variance and permit number 031716641. RECOMMENDED this 27th day of November, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1991.
Findings Of Fact Petitioner Ferncrest Utilities, Inc. owns and operates a sewage treatment plant at 3015 Southwest 54th Avenue, Fort Lauderdale, Florida. It presently services the needs of a population of about 2500 primarily located in three trailer parks, certain warehouses, a 153 room hotel, and several other business establishments. The plant was constructed and operated by a lessee of Petitioner's owners, but, in July 1979, Petitioner became the owner and operator of the facility. At that time, it was determined necessary to secure new operators and upgrade the plant equipment and method of process in order to properly service the existing and anticipated future number of customers in the area covered by a Public Service Commission franchise. Although the plant had been operating at a permitted capacity of 0.25 million gallons per day (MGD), Petitioner planned to expand the capacity to 0.60 MGD by modifying the aeration tank, and adding tertiary sand filters and equipment for clarification. Upon assuming control of the plant, Petitioner found that the 0.25 MGD permitted capacity had been exceeded by approximately 120,000 gallons per day for a number of years. Petitioner estimates that a population of 6,000 could be served under its new proposed design capacity. (Testimony of Forman, Exhibit 1) Pursuant to Petitioner's application for a construction permit, dated May 25, 1979, to modify the existing treatment plant, Respondent issued permit No. DC06-21789 on August 6, 1979. The permit specified that it was for construction of additional tank capacity for an existing 0.25 MGD wastewater treatment plant intended to approve effluent quality, and further stated that plant design capacity would remain at that figure. A subsequent letter from Respondent's subdistrict manager to Petitioner on January 15, 1980, stated that an evaluation of the quality of the surface waters receiving the plant discharge and the effect of such increased discharge would have to be made before processing a request for an increase in permitted flow. (Exhibit 7) On February 8, 1980, Respondent issued a temporary operating permit for Petitioner to temporarily operate a 0.25 MGD contact stabilization sewage treatment plant, including additional tank capacity and tertiary filtration. Specific conditions attached to the permit stated that it was issued to give the permittee a reasonable period of time to complete construction of the modification outlined in DER Permit DC06-21789 and for subsequent assessment of the effects of discharge on receiving waters. The conditions further required that the facility continue to achieve 90 percent removal of BOD5 and total suspended solids at all times with specified average daily discharges of such substances. Another condition required that the effluent from the plant be adequately chlorinated at all times so as to yield the minimum chlorine residual of 0.5 parts per million after a minimum contact period of 15 minutes. (Exhibit 8) Thereafter, on July 21, 1980, petitioner filed the instant application for an operation permit for the facility at a design capacity of 0.60 MGD. On October 7, 1980, Petitioner filed a certificate of completion of construction. By letter of December 16, 1980, Respondent's South Florida Subdistrict Manager advised Petitioner that the application for an operating permit had been denied for the reason that monitoring of the Class III receiving waters by the Broward County Environmental Quality Control Board indicated that the dissolved oxygen concentration was frequently below the minimum of 5 milligrams per liter required by Section 17-3.161(1), Florida Administrative Code, and that Petitioner's plant contributed to the substandard conditions in those waters. Petitioner thereafter requested a Section 120.57(1), F.S., hearing. (Exhibits 1-2, 4, 8) Petitioner's plant discharges into the North New River Canal through a six inch effluent pipe. The canal extends from Lake Okeechobee to the intracoastal waterway approximately five miles in distance from the point of discharge of Petitioner's plant. Monitoring of water quality in the canal for the past several years by the Broward County Environmental Quality Control Board shows that the dissolved oxygen concentrations at various sampling stations have ranged from below one part per million to in excess of five parts per million, depending upon the season of the year. However, at no station did the dissolved oxygen concentration reach an average of five parts per million. In addition, the tests also showed that BOD5 is generally low in the canal waters. (Testimony of Mazzella, Exhibits 1, 3, 5) Petitioner's modified plant is now capable of treating 0.60 MGD and meets current basic state requirements of 90 percent (secondary) removal of BOD and total suspended solids. In fact, the plant has tertiary treatment and can consistently operate at a level of 95 percent treatment. The data submitted by the applicant as to effluent water quality characteristics showed removal of 98 percent BOD, 97 percent suspended solids, 50 percent total nitrogen, and 25 percent total phosphorus with an average chlorine residual in the effluent of 0.2 parts per million. The dissolved oxygen level in the effluent has been established at 6.5 milligrams per liter. (Testimony of Hermesmeyer, Dodd, Exhibit 1) Respondent's district personnel took one 24-hour sample of the effluent from Petitioner's plant in March 1981 and determined that a concentrate of 14.6 milligrams per liter of ammonia was being discharged to receiving waters. Respondent therefore determined that the dissolved oxygen levels of the canal would be further degraded because approximately 48 to 50 parts per million of dissolved oxygen would be necessary to offset the effects of oxygen removal resulting from the ammonia discharge. Respondent further found that, although the effluent from the plant had 6.5 milligrams per liter of dissolved oxygen, the amounts of phosphorus and nitrogen being discharged could lead to algal blooms and consequent eventual eutrophication of its waters. Respondent's reviewing personnel therefore considers that there would be negative impacts upon the receiving waters if Petitioner discharged its prior licensed capacity of 250,000 gallons per day, and that a discharge of 600,000 gallons per day would double such impacts. Respondent's personnel therefore believes that although Petitioner's facility meets the basic secondary treatment requirements of Rule 17-6.01, Florida Administrative Code, it does not meet the water quality-based effluent limitation specified in Rule 17-6.10. In order to meet such requirements, it would be necessary to redesign the plant for more efficient removal of nutrients or to redirect the discharge. (Testimony of Mazzella) Other facilities adjacent to or near the North New River Canal discharge directly or indirectly into the canal waters and contribute to an unknown degree to the poor quality of the canal waters. Additionally, agricultural use of land produces stormwater runoff containing fertilizer residue into the canal in an unknown amount. A sewage treatment plant operates at optimum level of treatment when it discharges at about 50 percent of its treatment capacity. (Testimony of Mazzella) In 1983, Broward County will require Petitioner's plant to conform to state advanced waste treatment criteria which will provide for additional removal of nitrogen and phosphorus from effluent. To meet this requirement, Petitioner, plans to investigate the possibilities of utilizing a landlocked lake on its property near the treatment plant as a seepage pond. Although Petitioner's plant is identified in area regional plans to be diverted to the Hollywood wastewater treatment plant in the future, there is presently no target date for tying in to such a regional facility. (Testimony of Hermesmeyer, Exhibit 1)
Recommendation That Respondent issue a permit to Petitioner for the operation of its sewage treatment plant, with appropriate conditions as designed to protect the receiving waters. DONE and ENTERED this 27th day of May, 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 27th day of May, 1981. COPIES FURNISHED: Alfred Clark, Esquire Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Martin S. Friedman and R.M.C. Rose, Esquires Myers, Kaplan, Levinson, Kenin and Richards 1020 East Lafayette Street Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is entitled to the renewal of its domestic wastewater facility permit that was denied by Petitioner Department of Environmental Protection (Department).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes (2005),1 and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."2 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting water quality in the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the area of the St. Lucie River that Warner Creeks flows into is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2 at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. Laniger's WWTP was not determined to be a threat based on its wastewater treatment performance. There was no evidence presented that Laniger's WWTP had ever had intermittent treatment process failure, seepage to the lagoon system from effluent containment areas, or overflow during storm events. Those were the concerns related to package plants that were described in the SWIM Plan and the Department's 1991 report. Laniger's WWTP was not determined to be a threat based on evidence that it was causing or contributing to excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. No evidence was presented that there are excess nutrients in Warner Creek or in that part of the St. Lucie River nearest to Laniger's WWTP. The Department's 1991 report concluded that the solution for package plants threats was to eliminate the package plants and connect their wastewater flow to centralized sewage collection and treatment facilities. To date, over 90 of the 155 package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." The administrative order required Laniger to connect its WWTP to a centralized wastewater collection and treatment [facility] "within 150 days of its availability . . . or provide reasonable assurance in accordance with Chapter 620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System." As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, Laniger's attorney responded, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. Laniger's attorney also stated, "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] order." On September 29, 2003, the Department issued a warning letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The Department took no further formal action until it issued the NOV in August 2005. Laniger's challenge of the NOV was consolidated with this permit case. The Permit Renewal Application In an "enforcement meeting" between Laniger and the Department prior to the expiration of 1999 permit, the Department told Laniger that it would not renew Laniger's WWTP permit. Later, when Laniger filed its permit renewal application, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger submitted its permit renewal application to the Department on February 15, 2005. The Department considered Laniger's permit application to be complete, but proceeded to prepare the Notice of Denial without any technical review of the application. The Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." The record evidence showed that the "reasonable assurance" that would have been necessary to satisfy the Department was more than the reasonable assurance the Department usually requires for package plants, and more than the Department would have required if Laniger's WWTP was 100 feet from Warner Creek. Competent substantial evidence was presented that Laniger's WWTP is capable of being operated in accordance with the statutes and rules of Department generally applicable to package wastewater treatment plants. Laniger's 1999 permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Whether the Martin County Facility is Available As discussed below in the Conclusions of Law, it is concluded that the Department did not have authority to require Laniger to connect the WWTP to the Martin County force main or to require assurance beyond the reasonable assurance generally required for package treatment plants in order to obtain a permit. However, because considerable evidence and argument was directed to whether the force main was available, that issue will be addressed here. The Martin County force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad and railroad right-of-way. Laniger presented undisputed evidence that the cost to connect to the Martin County force main would be approximately $490,000 and that cost was prohibitively high, given the relatively small number of households served by the WWTP. The Laniger WWTP is subject to rate regulation by the Public Service Commission (PSC). Laniger presented evidence suggesting that connection to the Martin County force main would result in rates that would not be approved by the PSC. The evidence was speculative and not competent to support a finding regarding PSC action. The evidence does show, however, that PSC rate regulation was not a factor that the Department considered when it determined that the Martin County force main was available. There is no Department rule that defines when a centralized sewage collection and treatment facility is "available." The determination that the Martin County force main was available to Laniger was made informally by members of the Department's compliance staff in the Department's St. Lucie office. Mr. Thiel testified that he considered the force main to be available because it was "in close proximity" to Laniger's WWTP. However, Mr. Thiel admitted that there is a difference of opinion within DEP as to when a facility is available and reasonable persons could disagree about whether a facility was available. Mr. Thiel thought that the cost to connect is a factor to be considered in determining whether a facility is available, but another Department employee did not think cost should be considered. There was no evidence that the Department took into account Laniger's cost to connect in determining that the Martin County force main was available. The Department simply assumed that the Martin County force main was close enough to the Laniger WWTP site that the cost to Laniger would not be prohibitive. In addition, the Department was aware of other package plants that had connected to centralized sewage collection and treatment facilities that were the same distance or a greater from the package plant, and the Department did not hear from the owners of the package plants that the costs were prohibitive. Timothy Powell of the Department stated that force mains are usually made available by extending the force main so that it is "abutting the property as much as possible." He also stated that he assumed that Martin County would extend its force main under the railroad and to the boundary of the Laniger WWTP site after Laniger agreed to connect. However, there was no evidence to show that this is Martin County's intent, and the Department did not tell Laniger that Laniger did not have to connect to the force main unless Martin County brought the line to the boundary of the WWTP site. If the Department had authority to require Laniger to connect to the Martin County force main when it became available, and in the absence of any rule criteria to determine when a centralized sewage collection and treatment facility is available, the determination would have to be based on reasonableness. Reasonableness in this context must take into account the cost of the connection. Cost is the inherent reason that Laniger was not required to connect to the Martin County centralized sewage collection and treatment facility without regard to whether the facility was available. Laniger showed that the cost of connecting to the force main is unreasonably high due to the need to construct a line beneath the railroad. Therefore, Laniger proved by a preponderance of the evidence that the Martin County force main is not available.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Laniger Enterprises of America, Inc., a renewal of its wastewater treatment plant operating permit. The permit should contain the same conditions as were contained in the 1999 permit, with the exception of those conditions derived from Administrative Order No. AO 99-008- DW43SED. DONE AND ENTERED this 19th day of September, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 19th day of September, 2006.
The Issue The issue is whether the Respondent, Kingsley Service Company, should be granted an operating permit to increase the capacity of its Fleming Oaks Waste Water Treatment Plant from .490 MGD to .720 MGD.
Findings Of Fact The Fleming Oaks Waste Water Treatment facility is located on Fleming Island, at the south end of Bahia Road. (T 25). It includes three units, a .180 MGD, a .150 MGD and a .490 MGD plant. (T 49). The facility is owned and operated by Kingsley Service Company, the largest utility in Clay County. (T 24) Kingsley has operated in Clay County for more than 26 years and presently services the equivalent of over 17,000 homes. (T 23). Fleming Island is a relatively large piece of land bounded on the east by the St. Johns River, on the south by Black Creek, and on the north by Doctors Lake. On the west, Black Creek and Doctors Lake are connected by Swimming Pen Creek and a swampy marsh area. (T 25-26). In 1982, a .080 MGD sewage treatment plant was built at the present Fleming Oaks location. In 1984, a .0150 MGD plant was added, bringing the total facility capacity to .230 MGD. Effluent from those plants was discharged through a pipe to the St. Johns River. On February 25, 1986, Kingsley received permit No. D010-115962 authorizing continued operation at the Fleming Oaks facility of the 0.080 MGD and 0.150 MGD sewage treatment plants. This operation permit expired on February 25, 1991. (RE #1). On October 8, 1987, the Department issued permit No. DC10-139744 to Kingsley to expand "the existing 0.230 MGD...Sewage treatment plant by constructing a separate 0.490 MGD extended aeration sewage treatment plant with a total design capacity of 0.720 MGD." (RE #2). On January 25, 1990, the Department issued permit No. D01-104228 to Kingsley, "[t]o operate a 0.490 MGD extended aeration sewage treatment plant." This permit required Kingsley to apply for an operation permit for the full capacity of the plant, 0.720 MGD, when the new plant, 0.490 MGD reaches a load of approximately 90% of its capacity. The operation permit for the .490 MGD expires on January 25, 1995. (RE #3). Pursuant to the permit requirement referenced in the preceding paragraph, Kingsley applied to the Department on January 17, 1991 for an operation permit to "[p]lace [the] existing 0.230 MGD WWTP into service raising treatment capacity to 0.720." (RE #5). After reviewing that application, the Department executed a notice of permit issuance, authorizing Kingsley to operate a parallel 0.490 MGD extended aeration waste water treatment plant ("WWTP"), a 0.150 MGD contact stabilization WWTP and a 0.080 MGD contact stabilization WWTP having a combined design capacity of 0.720 MGD serving Fleming Island and authorizing discharge of the treated effluent into the St. Johns River, via an existing 500-foot pipe, 8 inches in diameter. (RE #7). This permit allowed the previously-constructed 0.230 MGD plant to be placed back in service. It is this permit which the Petitioners challenge. The system in question was designed by a qualified engineering firm with substantial experience in the design of waste water treatment plants (R 46, 47 & 48) and in compliance with Department regulations. (R 63-64). The system, as designed and constructed, is being operated by qualified personnel and consistent with Department regulations. (R 280, R 124, 131, 132). The 0.490 MGD plant consists of an aeration tank, a digester, and a clarifier. (RE #8; T 51). Raw sewage is pumped from lift stations into a "surge tank," where it falls through a bar screen and grid chamber which take out large items and sand which accumulate in the sewage system. (T 55-56). Raw sewage is then pumped from the surge tank to the aeration portion of the plant. (T 56). In the aeration tank, solids and liquids, called "mixed liquor," are evenly distributed throughout the depth of the liquid in the aeration tank, where the breakdown process occurs. (T 65). A control box is located between the aeration tank and clarifier which allows waste water from the aeration tank to flow into the clarifier once it reaches a certain level in the aeration tank. (T 56-57). The flow moves through the control box and into the portion of the clarifier called an "annular weir." The annular weir is approximately 18 inches from the outside wall of the clarifier and looks like the outer ring of a bull's-eye target from above. The purpose of the annular weir is to distribute flow evenly into the clarifier. At the center of the circular clarifier is a rectangular-shaped structure called an "effluent weir." (T 57). In the part of the clarifier outside the rectangular effluent weir, undigested solid material settles out onto the bottom. The liquid portion which remains after the solids settle out flow over the top of the effluent weir into the interior of the rectangular structure. The interior of the effluent weir can only be reached from the top. There are no entry points at the bottom, where the solids are. (T 66). The clear liquid that flows over the effluent weir and the sludge that settles to the bottom of the clarifier undergo further, separate treatments. The clarified effluent that flows over the top of the effluent weir is piped to the chlorine contact chamber for disinfection. (T 52). Chlorine is fed into the effluent to destroy pathogens which may be present. (T 81). The final 2-1/2 feet of the chlorine contact chamber is where dechlorination takes place. (T 62). Dechlorination is required so that the chlorine level in the effluent is reduced. (T 54). Dechlorination occurs when sulfur dioxide is mixed with the chlorinated effluent. Discharge monitoring takes place in the chlorine contact chamber. (T 62). The treated and dechlorinated effluent is pumped to the St. Johns River through an outfall which is 500 feet from shore. (T 53, 63). The sludge which settled to the bottom of the clarifier is drawn off at the bottom of the clarifier and directed into the "digester" where, under aerobic conditions and without additional food, bacteria die-off occurs. (T 59). The sludge is actually a liquid substance, approximately 97% water and 3% solids. (T 98-99). The digester is an ancillary process separate from the treatment of waste water. (T 57). The digester stabilizes and further reduces the organic content of the sludge. (T 51). Tanker trucks regularly remove the sludge from the digester and transport it to dairy farms where it is applied to the land. (T 98-101; RE #11 for invoices). The 0.490 MGD plant "has been designed and constructed to meet all the requirements currently posted or regulated by the State of Florida." (T 64). The construction and operation of the Fleming Oaks plant, when compared with the other 600 in the Department's Northeast District, is "very good." (T 131). Although the BOD and TSS limits are 20, the Fleming Oaks plant consistently gets better than 10 and many times less than 5 for these parameters. (T 131). Sampling of the St. Johns River at the end of the outfall pipe has shown that the water quality standards have been met for each sample. (T 141). The Monthly Operating Reports show that required parameters are almost always met. (RE #11). On June 7th, a machine sampled sewage coming into the plant and sewage that was leaving the plant. Two samples were taken, one where raw sewage comes in and one the final effluent. The raw sewage had a BOD of 205 and the treated effluent had a BOD of 1. (T 283-286). TSS was run the same way. Raw sewage had a TSS of 182 while the treated sewage had a TSS of 1. (T 287). Petitioners' concerns about the permitting of the 0.230 MGD capacity center around the buildup of "muck" in the river in the vicinity of the existing outfall. Petitioners assert that Kingsley pumped sludge through the outfall which "polluted" their waterfront as "muck." Donald Loop, who lives 4,000-5,000 feet to the south of the outfall, described the muck buildup as starting 18 months ago "at two to three inches and over a period of time increas[ing] to 18 inches in some places and other places over 24 inches." In conjunction with the muck buildup was "extreme devastation of all greenery, starting with cattails and many other green plants that grew out there." (T 153-154). During this time frame, the rainfall was 25% below the annual average and "the river flows were much less than normal." (T 153, 270). Damon Loop, Donald Loop's brother, lives on a canal, 350-400 feet off the St. Johns River. The canal is approximately 1,000 feet north of the outfall of the Fleming Oaks facility. (T 233). He noticed a muck buildup "when Kingsley Service Company first started putting the effluent into the river." (T 228). At that time, the end of the canal area started filling up with muck. The muck now covers almost 4-1/2 feet and has been there for six or seven years. (T 228). Two or three hundred feet out in the St. Johns River, where it is 10 feet deep, there is a black silt one foot to 15 inches deep. (T 229). Other witnesses also described the muck. Saxton Weir, who lives approximately one-half mile to the north of the outfall, described the muck as being 43 or 44 inches thick. (T 200, 204). The muck extended along his shoreline "over 500 feet" and extended out into the water "from 5 feet to over 100 feet." (T 212-213). Mr. Weir actually saw muck extending as far out as "485 feet from the shoreline." (T 214). The accumulated muck was blown away after three days of rain and a storm. (T 205). A video tape of the conditions caused by the muck was received and viewed. There are tons and tons of muck in this area. Petitioners believe that the muck was actually sludge or TSS illegally discharged from the Fleming Oaks facility. This belief was based upon the mistaken conclusion that the 0.430 MGD treatment process was requiring an inappropriately large amount of chlorine. Petitioners concluded that there was excessive chlorine in the water because of the death of barnacles on pilings in the area. Chlorine kills bacteria and oxidizes other organic materials. (T 116). Small amounts of organic matter which have not been completely digested by the treatment process can be oxidized by chlorine. (T 102). Chlorine is increased to treat unoxidized organic material. (T 83). The MOP/11 operation waste water manual, characterized by Mr. Loop as the "Bible of waste water treatment," indicates that about three parts per million chlorine is appropriate. (T 176). For June of 1990, the average chlorine feed was actually 3.3 parts per million. (T 297-298). The chlorine levels were within normal limits. The barnacles were killed by some other factor, perhaps the drought which occurred at about this time. Because of the muck-related complaints, a sample of sludge was taken by a Department employee from an unknown location in the area and analyzed at the Department laboratory, where it was microscopically determined that the sample was decaying vegetation. (T 138). Without intentionally discharging large amounts of sludge over a period of time, the chance of even noticing any buildup along the shoreline is very, very small. The particles left in the effluent are very small and very light. The ability of this material to settle in a water flowing at even low velocity is difficult. The velocity of the current at the outfall is sufficient to prevent any particles from settling out. (T 96). The "muck" in the river in front of the houses of the Petitioners was not shown to be sludge from the Fleming Oaks Waste Water Treatment Plant after testing by the Petitioners. (R 252). The capacity at issue in this proceeding, 0.230 MGD capacity, consists of 0.080 MGD plant, composed of two tanks, and a 0.150 MGD plant that is composed of three tanks. (T 49-50). Both of these plants are contact stabilization plants. ( T 67). Although permitted until February of 1991, these two plants ceased operating in April of 1989. (T 37). The St. Johns River is Class III waters of the State of Florida. Secondary treatment, which is required for these plants, is sufficient to maintain the water quality standards for the St. Johns River. (T 124-125, 130). When the 0.080 and 0.150 MGD plants were operational, they operated within the limits of the permit at issue here. (T 67). They will meet the requirements for issuance of the permit. (T 124). When the .230 MGD capacity is brought on line, raw sewage entering the surge tank will be routed to each of the three plants rather than just to the aeration plant alone, as it is at present. (T 88). Waste water will be pumped proportionately to the separate plants through variable speed pumps. (T 89). After appropriate treatment in the 0.80 MGD and 0.150 contact stabilization plants, clear liquid effluent will be transferred from them to the chlorine contact chamber where it will be chlorinated, dechlorinated and then pumped to the St. Johns River through the existing outfall. (T 90).
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the application of the Kingsley Service Company for the waste water treatment operating permit at issue be granted, on the terms and conditions set forth in the Department's Draft Permit, in evidence as Respondents' Exhibit 7. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992.
The Issue The issue in this case is whether the Petitioner has the actual experience required for certification as a Class B domestic wastewater treatment plant operator.
Findings Of Fact By application filed September 16, 1991, James H. Redden applied for certification as a Class B domestic wastewater treatment plant operator. At the time of the application, Mr. Redden was employed as a laboratory technician at a Class B Collier County regional wastewater treatment facility. From August 15, 1978, to July 31, 1989, Mr. Redden was employed at the Colgate-Palmolive Company facility at Jeffersonville, Indiana. The Colgate-Palmolive treatment facility is an Indiana Class D industrial wastewater treatment plant. Mr. Redden is certified by the State of Indiana as a Class D industrial wastewater treatment plant operator. During his employment at the Jeffersonville facility, Mr. Redden held positions as an associate chemist, senior chemist/plant microbiologist, and wastewater treatment plant supervisor. His duties included daily operations and supervision of personnel, scheduling and performance of maintenance activities, budgeting, ordering, materials balance, sludge management, laboratory analysis, quality assurance and quality control programs, and compliance with various state and federal reporting requirements. Mr. Redden has no experience either in the operation of a drinking water or domestic wastewater treatment plant, or at a DER-permitted industrial wastewater treatment plant.
Recommendation Based on the foregoing, it is hereby: RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of James H. Redden for certification as a Class B wastewater treatment plant operator. DONE and RECOMMENDED this 9th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner: The Petitioner did not file a proposed recommended order. Respondent: The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-4. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 James H. Redden 1362 Chesapeake, Avenue Naples, Florida 33962 Francine M. Ffolkes, Esq. Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399
The Issue Whether Petitioner North Fort Myers Homeowners Association, Inc. (Homeowners) participated in DOAH Case No. 91-6436 for an improper purpose.
Findings Of Fact On September 11, 1991, Homeowners filed its Petition for Administrative Hearing and Request to Consolidate with Administrative Hearing set for November 7, 1991. The Petition alleged that Homeowners' interests would be adversely affected by Bradley's request for a permit for construction of a wastewater collection system that it planned to connect to Florida Cities Water Company's Sewage Treatment Plant. It was further alleged that Florida Cities current violations of federal water quality standards would increase as a result of such a connection. Bradley responded to the Petition by filing a Motion to Dismiss for failure to State a Claim/Or in the Alternative Motion for Summary Judgment. On October 31, 1991, Hearing Officer Quattlebaum granted Bradley's Motion to Dismiss for Failure to State a Claim. The Hearing Officer found that the Petition did not allege that the application for a wastewater collection system permit failed to comply with the agency's relevant rules and criteria. The Hearing Officer also ruled that the Petition did not identify when such criteria would be unmet by the project. Homeowners was given leave of ten days to file an Amended Petition. Homeowners timely filed its Amended Petition for Administrative Hearing on November 13, 1991. This Amended Petition continued to focus upon whether Bradley's wastewater collection system should connect to Florida Cities Water Company's Sewage Treatment Plant and the federal water quality issue as it relates to discharge after treatment. After Bradley filed its Motion to Dismiss the Amended Petition and Homeowners replied, Hearing Officer Quattlebaum entered a Recommended Order of Dismissal on December 12, 1991. The basis for the recommendation was that Homeowners had "failed to allege that the application for permit failed to comply with the relevant criteria as set forth in statute and rule which govern issuance of the permit." The Temporary Operating Permit under which Florida Cities was operating expressly allowed Bradley's wastewater collection system to connect to the sewage treatment plant upon satisfaction of the Department's permitting requirements for such a collection system. Homeowners lost its opportunity to address whether such a connection was proper when it failed to timely challenge this Temporary Operating Permit. The only agency action subject to challenge in this case was whether Bradley's application to construct the wastewater collection system complied with the Department's permitting requirements for the system. Florida Cities anticipated actions were irrelevant to this particular proceeding because final agency action had already been taken on the question of whether the connection could take place. Throughout this proceeding, Homeowners failed to comprehend that it had waived its opportunity to pursue a challenge to the connection of Bradley's wastewater collection system to the sewage treatment plant when it did not timely challenge Florida Cities' Temporary Operating Permit. The Order granting Bradley's Motion to Dismiss dated October 31, 1991, did not affirmatively set forth that the connection issue could not be pursued in DOAH Case No. 91-6436. Homeowners' lack of comprehension on this issue remains evident in the Amended Petition, the Motion for Reconsideration filed after the Recommended Order of Dismissal, the Response to the Motion for Attorney's Fees and the testimony presented at hearing. Lack of comprehension is a neutral condition which neither proves nor disproves that the Petition and Amended Petition were filed for improper purposes, as defined by Subsection 120.59(6)(e), Florida Statutes. No direct evidence of Homeowners' participation in the proceeding for an improper purpose was established at hearing. The attorney for Homeowners at the time the Petition and Amended Petition were filed denied that Homeowners was motivated by an improper purpose. It was seeking to protect water quality in its locale and to assure the local sewer treatment system is adequate. There was no evidence presented as to whether Homeowners has participated in other such proceedings involving Bradley and the same project for an improper purpose.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Supplemental Final Order denying Bradley's request for attorney's fees and costs as Homeowners did not participate in this proceeding for an improper purpose as defined by Subsection 120.59(6)(e), Florida Statutes. RECOMMENDED this 26th day of June, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 26th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6436 Homeowners' proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #6. Accepted. Accepted. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. Rejected. Contrary to fact. See separate order on that issue. Rejected. Pleading amended accordingly. Accepted. See HO #13. Rejected. Contrary to fact. See Preliminary Statement. The Department's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. 3. Accepted. See HO #2. 4. Accepted. See HO #3. 5. Accepted. 6. Accepted. 7. Accepted. See HO #4. 8. Accepted. See HO #4. 9. Accepted. See HO #5. 10. Accepted. See HO #6. 11. Accepted. 12. Accepted. See HO #6. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. Rejected. Contrary to fact. See HO #7 - HO #13. Bradley's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See HO #7 and HO #8. Accept that Homeowners failed to present any justifiable issue of law or fact that could be heard in relation to this permit. See HO #7 - HO #9. COPIES FURNISHED: HAROLD M STEVENS ESQ PO DRAWER 1440 FT MYERS FL 33902 FRANCINE FFOLKES ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 GERI L WAKSLER ESQ PEPER MARTIN JENSEN MAICHEL & HETLAGE 2000 MAIN ST - STE 600 FT MYERS FL 33901 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPARTMENT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Several years prior to1978, petitioner General Development Corporation (GDC) applied to the DER for a dredge and fill permit to remove a plug of land between the Ocean Breeze Waterway and the North Fork of the St. Lucie River. During the course of negotiations for this permit, it was discovered that the North Port St. Lucie Sewage Treatment Plant, owned and operated by General Development Utilities, Inc., a wholly-owned subsidiary of the petitioner, was operating without a permit from the DER and discharging effluent into a ditch which flowed into the Ocean Breeze Waterway. In March of 1978, a temporary operating permit was issued for the sewage treatment plant. In July of 1978, petitioner received from the DER Permit No. 253.123- 1031 to dredge an area approximately 800 feet in length, 90 feet in width and 6 feet in depth in order to connect the Ocean Breeze/Sagamore Waterways to the dead end oxbow of the North Fork of the St. Lucie River. The permit application was given special consideration pursuant to Rule 17-4.28(7), Florida Administrative Code. The purpose for obtaining the permit was to create direct navigable access to the North Fork of the St. Lucie River from thee Ocean Breeze Waterway. The Ocean Breeze Waterway was and is currently connected to the North Fork of the St. Lucie River by a narrow, shallow, meandering creek and lake system. However, there is not a large enough opening to allow the type of navigable access desired by the petitioner for the benefit of 118 lots plotted along the Ocean Breeze and Sagamore Waterways. Among the seven particular or special conditions attached to the dredge and fill permit issued to petitioner was that the earthen plug not be removed until such time as a permanent operational permit was issued for the sewage treatment plant owned and operated by General Development Utilities, Inc. More specifically, petitioner agreed to the following special conditions to the issuance of the dredge and fill permit: "(7) The applicant is aware that the GDC Utilities' sewage plant is providing an unknown quantity of discharge into Ocean Breeze Waterway and that this discharge may be a source of pollution to the receiving body of water unless affirmative steps are taken by the Utilities. The sewage treatment plant is currently operating under a Temporary Operating Permit (TP56-4601). In no case shall the plug at Cove Waterway be removed before an Operation Permit for the STP has been issued by the Department of Environmental Regulation." At time of issuance of the dredge and fill permit, DER personnel considered the quoted special condition number 7 to an integral part of the permit in terms of water quality assurances. General Development Utilities, Inc. has not been able to obtain a permanent operational permit from the DER for its sewage treatment plant which discharges into a ditch that flows into the Ocean Breeze Waterway. Therefore, particular condition number 7 has not been satisfied and petitioner has been unable to proceed with the dredging or removing of the plug under the permit. As a result of the delays in removal of the plug, petitioner has had to repurchase some 41 of the 118 plotted lots. The sewage treatment plant was and is still operating under a temporary permit. General Development Utilities, Inc. has requested a permanent operational permit for the sewage treatment plant and DER has issued a letter of intent to deny such a permit. As a result, General Development Utilities has petitioned DER for site specific alternative criteria pursuant to Rule 17-3.031, Florida Administrative Code. This matter is the subject of a separate proceeding currently being held in abeyance pending a determination of alternative criteria. General Development Utilities, Inc. v. Department of Environmental Regulation, DOAH Case No. 81-177. In September of 1980, petitioner sent a letter to DER requesting that special condition number seven be removed from its dredge and fill Permit No. 253.123-1031. It was intended that this request be considered as a minor modification to the dredge and fill permit. In response, DER's Chief of the Bureau of Permitting, Suzanne P. Walker, informed petitioner by letter dated October 15, 1980, that it was the staff's initial reaction, after a review of the original dredge and fill permit file, that the requirement that the sewage treatment plant obtain a permanent operational permit prior to dredging remain as a condition of the dredge and fill permit. Petitioner was informed that if it wished to pursue the matter further, the project must be reevaluated as a major modification to the dredge and fill permit. A major modification to a permit requires a new permit application and fee and is treated and processed as an initial application for a permit, with the applicant being required to provide reasonable assurances that the water quality standards will not be violated. Upon request for a minor modification, DER simply reviews the file and determines whether the request is obviously environmentally insignificant. After receipt of the letter from Mrs. Walker, petitioner supplied DER with additional water quality data. Based upon this additional data, discussions with DER staff who had been involved with the initial dredge and fill permit and the sewage treatment plant permit, and two days of sampling data collected by DER, DER determined that particular condition number seven was an integral part of the affirmative reasonable water quality assurance provided and should remain a condition of the permit. This determination was communicated to petitioner by letter dated January 7, 1981. The sewage treatment plant discharges treated effluent into a drainage ditch known as C-108. Effluent from the plant first goes into holding or retention ponds. Under its current flow, it takes about forty days for the effluent to be discharged from the plant to C-108 and the Ocean Breeze Waterway. C-108 flows into the Ocean Breeze Waterway, an artificial waterway which is presently connected to the North Fork of the St. Lucie River by a narrow, shallow meandering creek and lake system. The sewage treatment plant currently operates at 300,000 gallons per day but has an authorized capacity to operate at two million gallons per day. It currently contributes approximately two percent of the total daily flow to C-108. The Ocean Breeze Waterway and C-108, independent of the sewage treatment plant, drain approximately 4,000 square acres and produce about 35 percent of the water that will flow into the North Fork. The North Fork is tidal, with four one foot tides per day. The tidal action comprises almost 63 percent of the moving water. At a two million gallons per day discharge, the wastewater plant would be contributing about 12 percent of the water that would be going into the North Fork from the Ocean Breeze Waterway system. In comparison with two adjacent drainage systems, the Ocean Breeze system contributes only about three percent of the fresh water which flows into the North Fork. The dissolved oxygen levels of C-108 are chacteristically below the state standard of five milligrams per liter, primarily due to the seepage of ground water into the canal. Due to man-made alterations and to natural phenomena, the North Fork's dissolved oxygen levels also characteristically fall below state standards. The dissolved oxygen level of the Ocean Breeze Waterway is characteristically above state standards. Higher levels of dissolved oxygen coming from the sewage treatment plant improves the dissolved oxygen levels of the existing system. High levels of nitrogen, phosphate and chlorophyll have been found near the point of discharge. The quality of water in the North Fork is better than in the Ocean Breeze Waterway. It was the opinion of petitioner's experts that no change in dissolved oxygen levels would occur in the Ocean Breeze Waterway or the North Fork if the plug of land between these water bodies were removed. Petitioner's witnesses also opined that the Ocean Breeze/C-108 system was not a source of nutrient enrichment to the North Fork, and that the present creek system provided no water quality benefits in the form of nutrient uptake for the North Fork. It was estimated that, if the plug of land were removed pursuant to the permit, a pollutant placed at the upper end of the Ocean Breeze Waterway would be diluted by 98 percent in 26 hours in lieu of the present 39 hours due to increased flushing. These opinions were based upon analyses by petitioner's witnesses of various samplings and data regarding dissolved oxygen, nutrients and phytoplankton. The respondent's witnesses felt that the poor water quality in the Ocean Breeze Waterway was attributable in large part to the sewage treatment plant discharge and, if the plug of land were removed, the water quality problems would be moved to the North Fork and the St. Lucie River. It was felt that the present creek and lake system -- the narrow circuitous connection presently existing between the canal and the river -- reduces the nutrients which otherwise would flow into the river. These conclusions were based upon DER's own survey, a review of the dredge and fill permit file and a review of the additional data supplied by the petitioner General Development Corporation. No data regarding the water quality of the effluent from the sewage treatment plant was submitted by the petitioner at the time of DER's review of the original application for the dredge and fill permit.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the request of General Development Corporation to modify Permit Number 253.123-1031 by removing particular condition number seven be DENIED. Respectfully submitted and entered this 14th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1981. COPIES FURNISHED: Valerie Fravel Corporate Counsel General Development Corp. 1111 South Bayshore Drive Miami Florida 33131 Alfred J. Malefatto Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Petitioner is a special tax district created by special act of the Florida Legislature. Chapter 71-822, Laws of Florida. The district covers approximately seventy-two square miles in northern Palm Beach County and southern Martin County, Florida. Petitioner's purpose is to provide water, sewer, drainage and solid waste services within the district. In conformity with its powers, the Petitioner operates an advanced waste water treatment plant on property which it owns in northern Palm Beach County. Petitioner has secured appropriate permits from DER in order to construct and operate the treatment plant. The treatment plant is among the most advanced in southeastern Florida. It has a four million gallon daily capacity, which could be increased to an eight million gallon capacity. In treating waste water the plant utilizes filtration, disinfection, retention in a holding pond, and discharge into a remote off-site area. The present discharge system is to pump effluent from the retaining pond through a canal or drainage system to a recharge or discharge lake which is located approximately three miles north and west of the treatment plant. This is known as the western discharge system, and was installed at a cost of approximately one million dollars. Due to the large amounts of pumping activity, it is an expensive system to utilize. Through its instant application, the Petitioner is seeking a permit allowing it to discharge effluent on-site. Effluent would flow into percolation ponds that have already been constructed. Effluent would settle in the ponds, and eventually would percolate through the soil. This system would he less expensive to operate than the western discharge system. Petitioner is interested in experimenting with the amount of waste water treatment that can be obtained through action of vegetation in the percolation ponds upon the effluent. Such a natural system, if it operated effectively, could save the Petitioner additional money in treating waste water by reducing the need for chemical treatment. Petitioner's waste water treatment presently results in a discharge of effluent which within some parameters meets even drinking water standards. The Petitioner's system very effectively treats bio-chemical oxygen demand ("bod"), suspended solids, nitrogen, and phosphorus in the effluent. Reports have been submitted by the Petitioner to DER which indicate that the system does not meet DER's standards for advanced waste water treatment. Samples upon which these reports were based were taken at a point in the system before the effluent was subjected to the action of the retention pond and the subsequent bumping into the western discharge system. Samples taken beyond the retention pond indicate that DER's standards are met for "bed", suspended solids, total nitrogen, and total phosphorus. The Intervenor owns property adjacent to the Petitioner's waste water treatment plant. The Intervenor operates a well field and drinking water treatment plant on the property, and provides drinking water to residents of the Town of Jupiter and surrounding communities from the well field. The Intervenor acquired its treatment plant, and surrounding well fields from a private utility company. The Petitioner was aware of the well field when it purchased the property upon which it presently operates its waste water treatment plant. While the Petitioner's plant adequately treats waste water in terms of "bod", suspended solids, total nitrogen, and total phosphorus it does not treat the waste water for heavy metals, pesticides, or viruses. These are common elements found in waste water effluent in the south Florida area. The Petitioner's proposal is to discharge its effluent into on-site ponds. The effluent would then percolate into the ground. The retention ponds are located at a distance from 1200 to 1600 feet from the nearest of the Intervenor's wells. Water which percolates from these ponds would flow directly toward the wells, and would eventually find its way into the wells. The flow from the retention ponds to the wells would be increased due to the draw-down effect that the wells have on the surrounding water table. As water is drawn from the wells, the adjoining water table becomes depressed in the area of the wells, and water from the surrounding area flows more rapidly into the area of the wells. Heavy metals will not be filtered out as a result of retention or percolation. Heavy metals in the effluent would eventually find their way into the Intervenor's well fields. Estimates as to the amount of time that it would take for water from the percolation ponds to reach the wells varied from four months to six years. The longer estimate appears the more reasonable; however, the evidence is conclusive that eventually waters from the percolation ponds would reach the wells, and that heavy metals in the water would not be filtered out. The Petitioner proposes to obviate any problems with heavy metals reaching the well fields by operating testing wells between the percolation ponds and the well fields. If any heavy metals were detected in the ground water, Petitioner would again use the western discharge system rather than the percolation ponds. While this would prevent increased contamination of the wells, contamination that had already reached the test wells would reach the Intervenor's wells. It was suggested that the percolation ponds could be drawn down in order to reverse the flow of ground water back into the percolation ponds, thence to be pumped through the western discharge system. In order to accomplish this, however, the percolation ponds would have to be more than forty feet deep, which they are not. The effect of heavy metals intruding into the Intervenor's water supply could be to increase the cost of treatment, or to render the wells unfit for use. Uncontaminated drinking water supplies are rare in the northern Palm Beach County area, and the expense of finding a new water supply is difficult to calculate.
