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 for consideration in this case is whether sufficient grounds exists for the Petitioner, West Coast Regional Water Supply Authority, to terminate Respondent, Steve Toler, Jr.'s employment with the Authority because of the matters alleged in the Letter of Termination dated February 15, 1995.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Authority, was a governmental agency with membership held by Hillsborough, Pinellas and Pasco Counties and the cities of St. Petersburg and Tampa. It is charged with the responsibility of providing water resource management for its members. In November, 1994, the Respondent, Steve Toler, Jr., then employed for 9 1/2 years by the Authority as a maintenance technician, was under the supervision of Ben Nevel, lead supervisor for his crew and Harry Vogel, the facilities maintenance supervisor at Cypress Creek pump station. Just before Thanksgiving that year, his crew was given the responsibility of removing certain supposedly above ground aluminum pipe belonging to Pinellas County and replacing it with buried PVC pipe on the county's well field on Cross Bar Ranch, owned by Pinellas County. On the last day of the project Respondent was working by himself at the job site doing those things necessary to complete the project. This included removing three aluminum pipes and replacing them with three PVC pipes. In the course of the removal of the aluminum pipe, two pipes were damaged by Respondent because they were buried and he could not see them. When Respondent attempted to bury the three pieces of PVC pipe, he found that he needed some pipe lubricant in order to get them joined and called the pump station to have someone bring it. The lubricant was brought to the site by Mr. Vogel about noon, and the two men talked about the project. According to Mr. Vogel, Respondent made no mention of any damaged pipe nor did Vogel see any damaged pipe while he was at the site. Vogel adamantly denies that he ever, either that day or at any other time, told Respondent that he could throw away damaged pipe. The instructions that Vogel had left with Mr. Nevel for transmittal to the crew was that the removed pipe was to be placed in storage at the north end of the ranch because it belonged to Pinellas County, not to the Authority, and even if the pipe was damaged, the ends might be used for fittings. It is not clear whether Respondent knew the pipe belonged to the county or to the cattle company which had originally owned the ranch. Notwithstanding, Respondent took the two damaged pipes back to the Cypress Creek pumping station where, without speaking to anyone about what he proposed to do, he placed them in the trash dumpster for disposal. The following day, after completing his day's work, Respondent noted that the pipe was still in the dumpster and, without seeking approval from anyone, removed it from the dumpster, placed it in his truck, and that same day, sold it to All American Metal Recycling in Land O'Lakes, Florida, for $29.00 which he kept for his personal use. He collects scrap aluminum and copper in order to sell them. Respondent admits that as an Authority employee, he did not have the authority to take property owned by the Authority or its members for his own use. Ordinarily, he admits, the disposal of Authority-owned property had to be approved. The authority for approval, as contained in the agency's standard operating procedure for disposal of Authority assets, dated February 14, 1994, was the Cypress Creek storekeeper. Though it is not written, the Authority has a policy against employees taking material out of the dumpsters at the Cypress Creek facility. It was Toler's understanding, however, that old, unusable pieces of piping and wood could be thrown away, but equipment and property that had value had to be turned into Mr. Rooney, the storekeeper, who would evaluate it for disposal or repair. At no time did Respondent have the authority to make that determination. Mr. Toler admits he was aware of the Authority's policy on the disposal of property as noted in the February 14 SOP, as it had been outlined at no lees than two safety meetings he had attended. He understood that if he threw property away without authority, he could be fired. In fact, he admits, Mr. Vogel had so advised him of that. In the instant case, however, he contends, Mr. Vogel told him on the last day of the project in issue, in response to his inquiry, that he should throw the damaged pipe away. This was, as stated earlier, categorically denied by Mr. Vogel. Respondent also indicates that on the second day of the project, pipe being removed was damaged. That pipe was taken to the north pasture and stacked near other, undamaged pipe. The total amount of aluminum pipe removed in this project consisted of approximate one hundred twenty foot long "sticks". Respondent well knew he could not take and sell the stacked pipe, even that which was damaged. Respondent claims that no one saw him put the damaged pipe into the dumpster. He did not think about the opportunity to salvage the pipe when Mr. Vogel told him to throw it away or even when he brought it back and threw it into the dumpster. It was not until the next day when, after work, he saw the pipe still in the dumpster, that it occurred to him to take it, he claims. Respondent admits he has taken scrap metal and sold it before and claims others have done so, too. When he put this pipe in the dumpster he realized that others might take it, so he was somewhat surprised when it was still there the next day. Respondent also admits he did not tell Mr. Vogel how he had disposed of the pipe at first. Once the situation came under investigation, however, as a result of an inquiry regarding missing pipe from the Cross Bar Ranch project, he did so. He admits that sometime after the day he took and sold the pipe as scrap, but before the investigation was commenced, Mr. Vogel asked him what he had done with the pipe, and Respondent replied he had thrown it away. A few days later, in Vogel's office, when the investigation had begun, Mr. Vogel again asked Respondent what he had done with the pipe, and this time Respondent admitted to scrapping it. In the course of the investigation, Respondent spoke with Mr. Capp, a Cypress Creek engineer, about the allegation. In that conversation, held in Mr. Capp's office while no one else was present, Respondent admitted selling the broken pipe for scrap and advised that Mr. Vogel had told him to throw it away. At that time, he offered to replace the pipe, but his offer was not accepted. Some time later, and prior to the pre-disciplinary hearing, he was given a letter by Mr. Capp placing him on administrative leave pending investigation. At that time, Mr. Capp denied knowing what was in the letter. On February 8, 1995 a pre-disciplinary hearing was held with Respondent and counsel present at which time Respondent was given an opportunity to tell his side of the story. At that time, he did not mention any other individuals who had taken scrap from the dumpster, nor had he ever told Mr. Vogel, Mr. Capp or Mr. Kennedy about that. He claims he does not know of any cases where either Mr. Capp or Mr. Kennedy knew of others taking scrap but not being disciplined. However, Respondent is of the opinion Mr. Vogel knows what is going on but he cannot be sure. As was stated previously, Respondent has taken scrap from the dumpster before and claims Mr. Vogel knew it. Vogel, predictably, denies that. Some time after the pre-disciplinary hearing, after Kennedy received the information regarding the incident as determined therein, he discharged Respondent for several violations of the Authority's personnel rules. These included the removal and sale of the scrap pipe owned by Pinellas County, committing a breach of public trust, and committing a breach of member government trust which was deleterious to the Authority in that, in Kennedy's opinion, it undermined the public's faith and confidence in the Authority's public service responsibilities. Kennedy asserts that the relationship between the Authority and its member governments requires that each cooperate with the other in the mission to supply water to the public. Trust and confidence are essential elements of that relationship. Employees of the Authority and its member governments frequently are in and out of each others' facilities. If a member government loses trust in an Authority employee, the Authority's ability to efficiently perform its function would be hampered. This is a reasonable and supportable position and it is so found. In the past, the Authority has discharged employees for violating employee rules which reflect adversely on Authority integrity. One was discharged for the improper use of an Authority vehicle, and others have been discharged for violations of the property disposal policy. It would appear that Mr. Toler has not been treated differently than any others who were found to have violated similar policies. Since February, 1944, when the Authority adopted its policy regarding disposal of property, three employees, including Respondent, have removed materials from the dumpster at the Cypress Creek facility for their own use. Among these are Mr. Nevel who admits to taking electric wire and three discarded printers. Nothing taken by the others included aluminum pipe, however. Capp, Kennedy and Vogel all deny knowing that employees were taking scrap. Respondent cannot say that any of them did know. Consistent with that philosophy, Mr. Kennedy indicates he would have discharged Respondent for placing the scrap in the dumpster whether or not he sold it. By the same token, he would have discharged Respondent had he taken and sold the pipe, even if he had not placed it in the dumpster. Another incident arose in June, 1995, just prior to the hearing, involving the potential disposal of scrap pipe. Mr. Kennedy learned that a stick of aluminum pipe was in the dumpster at the Cypress Creek facility. The pipe, owned by the Authority, had been placed there by Mr. Rooney, the storekeeper, after Mr. Nevel used the ends to retrofit some piping at the Cross Bar Ranch. When this was discovered, Mr. Kennedy directed the pipe be recovered and held for possible future use or sale. Whereas Respondent contends this action was an attempt at a cover-up, it is more likely the result of an unintentional discard of potentially useful pipe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the East Coast Regional Water Supply Authority deny Respondent's Petition for Relief and Enter a Final Order discharging him effective February 15, 1995. RECOMMENDED this 29th day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. & 4. Accepted but irrelevant to any disputed issue of fact. Accepted. - 8. Accepted. 9. - 14. Accepted and incorporated herein. 15. - 19. Accepted and incorporated herein. 20. - 25. Accepted and incorporated herein. 26. & 27. Accepted and incorporated herein. 28. Accepted. 29. Accepted and incorporated herein. 30. Accepted and incorporated herein. 31. Accepted and incorporated herein. FOR THE RESPONDENT: Respondent's counsel has identified his Proposed Findings of Fact by letter rather than number. For the sake of consistency in this Order they will be re- identified herein with numbers. Accepted and incorporated herein. & 3. Accepted but not dispositive of any issue of fact. - 8. Accepted and incorporated herein. Accepted but not dispositive of any issue of fact. - 12. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not a proper Finding of Fact but more a Conclusion of Law. COPIES FURNISHED: Gregory A. Hearing, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 North brush Street, Suite 200 Post Office Box 639 Tampa, Florida 33601 Michael S. Edenfield, Esquire Battle & Edenfield, P.A. 206 Mason Street Brandon, Florida 33511 General Manager West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621 Donald D. Conn General Counsel West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
The Issue This is a procurement protest. The ultimate issue is whether the Respondent’s award of the "Agreement for the Construction and Operation of a Seawater Desalination Plant and Water Purchase Agreement" ("WPA") to Intervenor, S & W Water, LLC ("S&W") on July 19, 1999, is contrary to Tampa Bay Water's (TBW’s) governing statutes, its rules or policies, or the proposal specifications, or is clearly erroneous, contrary to competition, arbitrary, or capricious. Additional issues presented for decision are: (1) whether Petitioner has standing to maintain this protest; and (2) whether, by participating in the procurement process, Petitioner has waived or is estopped from claiming irregularities arising out of that process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that TBW enter a Final Order denying Petitioner's Formal Protest. Jurisdiction is reserved for consideration of S&W's request for a determination of improper purpose under Section 120.595(1), Florida Statutes, if such request is made by motion within 10 days from the issuance of this Recommended Order. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1999. COPIES FURNISHED: Charles W. Pittman, Esquire 400 North Tampa Street Suite 1040 Tampa, Florida 33602 Richard A. Harrison, Esquire John W. Wilcox, Esquire Allen, Dell, Frank & Trinkle, P.A. Post Office Box 2111 Barnett Plaza, Suite 1240 101 E. Kennedy Boulevard Tampa, Florida 33601-2111 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive Suite 211 Clearwater, Florida 33761-3950 John H. Rains, III, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 One Tampa City Center, Suite 2100 Tampa, Florida 33601
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
The Issue Whether SFP's revised application for a permit to construct a sewage treatment plant with percolation ponds should be granted or, for failure of SFP to give reasonable assurances that the plant will not cause pollution significantly degrading the waters of Gator Cove, be denied?
Findings Of Fact About 1,500 feet from Santa Fe Lake's Gator Cove, SFP proposes to build an extended aeration package sewage treatment plant to serve a "private club with restaurant and overnight accommodations," SFP's Exhibit No. l, to be built between the plant and the lake, on the western shore of Santa Fe Lake, just south of the strait or pass connecting Santa Fe Lake and Little Santa Fe Lake. The site proposed for the waste water treatment plant lies at approximately 177 or 178 feet above sea level, north of Earleton on county road N.E. 28 near State Road 200A, some three miles north of State Road 26, in unincorporated Alachua County, Section 33, Township 8 South, Range 22 East. SFP's Exhibit No. 1. Santa Fe Lake, also called Lake Santa Fe, and Little Santa Fe Lake, also called Little Lake Santa Fe, are designated outstanding Florida waters by rule. Rule 17-3.041(4)(i), Florida Administrative Code. Lake Santa Fe "is . . . the sixth largest non-eutrophic lake in the State of Florida . . . [and] the last remaining large non-eutrophic lake in Alachua County." (0.367). Recreation is a "beneficial use" of these waters. The Lakes Santa Fe are at an elevation of approximately 140 feet above sea level, and their level varies within a range of four feet. Input The proposed plant is to treat sewage generated by staff, by diners at a 150-seat restaurant, and by inhabitants of 150 lodge or motel rooms, comprising 100 distinct units. On the assumptions that 150 rooms could house 275 persons who would generate 75 gallons of sewage a day for a daily aggregate of 20,625 gallons, and that a 150-seat restaurant would generate 50 gallons of sewage per seat per day, full occupancy is projected to engender 28,125 gallons of sewage per day. This projection is based on unspecified "D.E.R. criteria; (5.35) which the evidence did not show to be unreasonable. Full occupancy is not foreseen except around the Fourth of July, Labor Day and on other special occasions. An annual average flow of between 15 and 20,000 or perhaps as low as 13,000 gallons per day is envisioned. (S.38) The proposed plant is sized at 30,000 gallons per day in order to treat the peak flow forecast and because package plants are designed in 5,000 gallon increments. Sluice-gate valves and baffling are to permit bypassing one or more 5,000 gallon aeration units so plant capacity can be matched to flow. The composition of the sewage would not be unusual for facilities of the kind planned. As far as the evidence showed, there are no plans for a laundry, as such, and "very little laundry" (S.37) is contemplated. The health department would require grease traps to be installed in any restaurant that is built. Gravity would collect sewage introduced into 2,000 feet of pipe connecting lodging, restaurant and a lift station planned (but not yet designed) for construction at a site downhill from the site proposed for the water treatment plant. All sewage reaching the proposed treatment plant would be pumped 3,000 feet from the lift station through a four-inch force main. Influent flow to the treatment plant could be calculated by timing how long the pump was in operation, since it would "pump a relatively constant rate of flow." (S.39) Treatment Wastewater entering the plant would go into aeration units where microorganisms would "convert and dispose of most of the incoming pollutants and organic matter." (S.40) The plant would employ "a bubbler process and not any kind of stirring-type motion . . . [so] there should be very little:; aerosol leaving the plant," (S.42) which is to be encircled by a solid fence. Electric air blowers equipped with mufflers would be the only significant source of noise at the proposed plant, which would ordinarily be unmanned. If one blower failed, the other could run the plant itself. A certified waste water treatment plant operator would be on site a half-hour each week day and for one hour each weekend. SFP has agreed to post a bond to guarantee maintenance of the plant for the six months' operation period a construction permit would authorize. (0.63) The proposed plant would not "create a lot of odor if it's properly maintained." Id. The specifications call for a connection for an emergency portable generator and require that such a generator be "provide[d] for this plant. . . ." (S. 43). The switch to emergency power would not be automatic, however. A settling process is to follow extended aeration, yielding a clear water effluent and sludge. Licensed haulers would truck the sludge elsewhere for disposal. One byproduct of extended aeration is nitrate, which might exceed 12 milligrams per liter of effluent, if not treated, so an anoxic denitrification section has been specified which would reduce nitrate concentrations to below 12 milligrams per liter, possibly to as low as 4 or 5 milligrams per liter. Before leaving the plant, water would be chlorinated with a chlorinator designed to use a powder, calcium hypochlorite, and to provide one half part per million chlorine residual in the effluent entering the percolation ponds. A spare chlorine pump is to be on site. The effluent would meet primary and secondary drinking water standards, would have 20 milligrams or less per liter of biochemical oxygen demand or, if more, no more than ten percent of the influent's biochemical oxygen demand, and total suspended solids would amount to 20 milligrams or less per liter. (5.294- 295). Half the phosphorous entering the plant would become part of the sludge and half would leave in the effluent. Something like ten milligrams per liter of phosphorous would remain in the effluent discharged from the plant into the percolation ponds. (5.202). Although technology for removing more phosphorous is available (S.298, 0.170-171), SFP does not propose to employ it. Allen flocculation treatment followed by filtration could reduce phosphorous in the effluent to .4 milligrams per liter, but this would increase the cost of building the treatment plant by 30 to 40 percent; and operational costs would probably increase, as well, since it would be necessary to dispose of more sludge. (0.170-172). SFP did agree to accept a permit condition requiring it to monitor phosphorous levels in groundwater adjacent to the proposed plant. (0.63). Land Application Three percolation ponds are planned with an aggregate area of 30,000 square feet. At capacity, the plant would be producing a gallon and a half of effluent a day for each square foot of pond bottom in use. The ponds are designed in hopes that any two of them could handle the output of effluent, even with the plant at full capacity, leaving the third free for maintenance. The percolation ponds would stand in the lakes' watershed, in an area "of minimal flooding, (S.30) albeit outside the 100-year flood plain. Santa Fe Lake, including Gator Cove, and Little Santa Fe Lake are fed by groundwater from the surficial aquifer. All effluent not percolating down to levels below the surficial aquifer or entering the atmosphere by evapotranspiration would reach the lake water one way or another sooner or later. If percolation through the soils underneath the percolation ponds can occur at the rate SFP's application assumes, effluent would not travel overland into Lake Santa Fe except under unusually rainy conditions, which would dilute the effluent. Whether the planned percolation ponds would function as intended during ordinary weather conditions was not clear from the evidence, however. In the event the ponds overflowed, which, on SFP's assumptions, could be expected to happen, if peak sewage flaw coincided with weather more severe than a 25-year rainfall, effluent augmented by rainwater would rise to 179.87 NGVD (S.34), then overflow a series of emergency weirs connecting the ponds, flow through an outfall ditch, drain into a depression west of the ponds, enter a grassed roadside ditch, and eventually reach Lake Santa Fe after about a half a mile or so of grass swales. (5.69). Sheet flow and flow through an ungrassed gulley in the direction of Gator Cove (0.154) are other possible routes by which overflowing waters might reach the lake. (0.263). Since the facilities the plant is designed to serve are recreational, wet weather would discourage full use of the facilities and therefore full use of the water treatment system. Effluent traveling over the surface into Gator Cove would wash over vegetation of various kinds. Plants, of course, do take up phosphorous, but they don't do it forever, and if you leave a plant system alone, it will come to a steady state in which there is no net storage of phosphorous in the plant material. (0.166) Whether by sheet flow or by traversing swales, overland flow would reach Gator Cove within hours. Effluent traveling through the surficial aquifer would not reach the lake for at least five years. (S.238-9). It could take as long as 45 years. (0.316). In the course of the effluent's subterranean passage, the soil would take up or adsorb phosphorous until its capacity to do so had been exhausted. In addition, interaction with certain chemicals found in the soil, primarily calcium, precipitates phosphorous dissolved in groundwater. As between adsorption and precipitation, the former is much more significant: "[W]ith a three-meter distance you can expect at least 70 to 80 percent removal of phosphorous just by a a[d] sorption alone." (0.21). Precipitated phosphorous does not return to solution, unless the soil chemistry changes. (0.19) Adsorption, however, is reversible, although not entirely, because of the "hysteresis phenomenon." (0.19) Eventually, a kind of dynamic equilibrium obtains to do with the binding of the phosphorous to soil constituents, binding or precipitation of phosphorous. At some point . all of the binding sites become saturated . [and] the amount of phosphorous leaving, into the lake really, will be equal to the amount of phosphorous going into the the system. When there is no more place to store the phosphorous in the ground, then the output is equal to the input and that is called the steady state. (0.161) Although precipitation of phosphorous would not reach steady state under "conditions that render the phosphorous-containing compound insolu[]ble," (0.168) these conditions were not shown to exist now "much less . . . on into perpetuity." Id. Spring Seep A third possible route by which the effluent might reach lake waters would begin with percolation through the sand, which is to be placed on grade and on top of which the percolation ponds are to be constructed. Underground, the effluent would move along the hydraulic gradient toward the lake unless an impeding geological formation (an aquiclude or aquitard) forced it above ground lakeward of the percolationi ponds. In this event, the effluent would emerge as a man-made spring and complete its trip to Gator Cove, or directly to the lake, overland. The evidence demonstrated that a spring seep of this kind was not unlikely. Relatively impermeable clayey soils occur in the vicinity. A more or less horizontal aquitard lies no deeper than four or five feet below the site proposed for the percolation ponds. Conditions short of an actual outcropping of clayey sand could cause effluent mounding underground to reach the surface. Nor did the evidence show that an actual intersection between horizontal aquitard and sloping ground surface was unlikely. Such a geological impediment in the effluent's path would almost surely give rise to a spring seep between the pond site and the lakes. In the case of the other percolation ponds in this part of the state that do not function properly, the problem is n [U] sually an impermeable layer much too close to the bottom of the pond," (S.179), according to Mr. Frey, manager of DER's Northeast District. Phosphorous in effluent travelling by such a mixed route would be subject to biological uptake as well as adsorption and precipitation, but again a "steady state" would eventually occur. On Dr. Bothcher's assumptions about the conductivity of the clayey sand (or sandy clay) lying underneath the topsoil, the effluent would accumulate as a mound of groundwater atop the clay unit, and seep to the surface in short order; and "after a matter of probably weeks and maybe months, it would be basically of the quality of the water inside of the percolation pond." (0.278). More Phosphorous in Gator Cove The total annual phosphorous load from all existing sources "to the lake" has been estimated at 2,942 kilograms. Assuming an average effluent flow of 17,000 gallons per day from the proposed plant, "the total phosphorous load [from the proposed plant] will be 235 kilograms per annum," (0.16), according to Dr. Pollman, called by SFP as an expert in aquatic chemistry. Even before any steady state condition was reached, 20.75 to 41.5 kilograms of phosphorous, or approximately one percent of the existing total, would reach the lake annually from the proposed plant, on the assumptions stated by Dr. Pollman at 0.22-23 (90 to 95 percent removal of phosphorous in the soils and average daily flow of 30,000 gallons). Santa Fe Lake is more than two miles across and two miles long, and Little Santa Fe Lake, which may be viewed as an arm of Santa Fe Lake, is itself sizeable, with a shoreline exceeding two miles. But Gator Cove is approximately 200 yards by 100 yards with an opening into Santa Fe Lake only some 50 to 75 yards wide. (0.154). On a site visit, Dr. Parks observed "luxuriant growth of submerged plants" (0.154), including hydrilla, in Gator Cove. If a one percent increase in phosphorous were diffused evenly throughout the more than eight square miles Santa Fe Lake covers, there is no reason to believe that it would effect measurable degradation of the quality of the water. Some nutrients are beneficial, and the purpose of classifying a lake is to maintain a healthy, well-balanced population of fish and wildlife. It's hard to see how 1.4 percent increase would lower the ambient quality. But . . . seepage into Gator Cove, which is a much more confined place [100 by 200 yardsj [would make it] quite probable that there would be a lowering of ambient water quality in the site . R] educed dispersion . . . in this cove would allow . . . phosphorous to build up. (0.156) Overland effluent flow to Gator Cove would increase concentrations of phosphorus there, with a consequent increase in the growth of aquatic plants, and the likely degradation of waters in the Cove, unless rapid and regular exchange of lake and cove waters dispersed the phosphorous widely, promptly upon its introduction Except for testimony that wind-driven waves sometimes stir up phosphorous laden sediments on the bottom, the record is silent on the movement of waters within and between Lake Santa Fe and Gator Cove. The record supports no inference that phosporous reaching Gator Cove would be dispersed without causing eutrophic conditions significantly degrading the water in the Cove. Neither does the record support the inference, however, that effluent moving underground into the lakes would enter Gator Cove. On this point, Dr. Bottcher testified: [T]he further away from the lake that you recharge water the further out under a lake that the water will be recharging into the lake; gives it a longer flow . . . it's going to migrate and come up somewhat out into the lake. (0.281-2) Phosphorous in the quantities the treatment plant would produce, if introduced "somewhat out into the lake" would probably not degrade water quality significantly, notwithstanding testimony to the contrary. (0.349, 354). Sands and Clays DER gave notice of its intent to deny SFP's original application because SFP proposed to place the pond bottoms approximately two and a half feet above an observed groundwater table. Placement in such proximity to groundwater raised questions about the capacity of the ground to accept the effluent. In its revised application, SFP proposes to place sand on the existing grade and construct percolation ponds on top of the sand. By elevating the pond bottoms, SFP would increase the distance between the observed groundwater table and pond bottoms to 5.2 feet. (S.256, 257). This perched water table, which is seasonal, is attributable to clayey sand or sandy clay underlying the site proposed for the percolation ponds. Between January 9, 1985, and January 17, 1985, "following a fairly dry antecedent period," (S.229) Douglas F. Smith, the professional consulting engineer SFP retained to prepare the engineering report submitted in support of SFP's permit applications, conducted six soil borings in the vicinity of the site proposed for the plant. One of the borings (TB 5) is in or on the edge of a proposed percolation pond and another (TB 4) is slightly to the north of the proposed pond site. Three (TB 1, 2 and 3) are east of the proposed pond site at distances ranging up to no more than 250 feet. The sixth is west of the proposed site in a natural depression. Mr. Smith conducted a seventh test boring under wetter conditions more than a year later a few feet north of TB 4. Finally, on September 5, 1986, during the interim between hearing days, Mr. Smith used a Shelby tube to obtain a soil sample four to six feet below grade midway between TB 4 and TB 5. 1/ The sites at which samples were taken are at ground elevations ranging from 173 to 178 feet above sea level. From the original borings and by resort to reference works, Mr. Smith reached certain general conclusions: The top four feet or so at the proposed pond site consists of silty sand, 17 percent silt and 83 percent quartz sand. This topsoil lies above a two-foot layer of clayey sand, 20 percent clay, 6 percent silt and 74 percent sand. Below the clayey sand lies a layer some eight feet thick of dense, silty sand, 23 percent silt, 7 percent clay and 70 percent sand, atop a one and one-half foot layer of clayey sand, separating loose, quartz sands going down 40 feet beneath the surface from what is above. These formations "are very heterogeneous, in the sense of the position and occurrence of the clay layers or the sandy layers . . .," (0.230) and all occur within the surficial aquifer. "There are layers of clay within it, and so perched water tables are rather common." (0.225). In March of 1986, the regional water table was some 17 feet down. SFP Exhibit 1B. Below the surficial aquifer lie the Hawthorne formation and, at a depth of 110 feet, the limestone of the Floridan aquifer. The soils above the Hawthorne formation are not consolidated. (S.254, 255). Conductivity Measurements The applicant offered no test results indicating the composition or conductivity of soils lying between the easternmost test boring and Gator Cove, some 1,200 feet distant. No tests were done to determine the conductivity of the deeper layer of clayey sand beneath the site proposed for the ponds. Tests of a sample of the topsoil in TB 7 indicated horizontal permeability of 38.7 feet per day and vertical permeability of six feet per day. On the basis of an earlier test of topsoil in TB 3, "hydraulic conductivity of the surface soils was measured to be 8.2 feet per day. . . ." SFP's Exhibit No. 1B. From this measurement, vertical hydraulic conductivity was conservatively estimated at .82 feet (9.84 inches) per day. Id. The design application rate, 2.41 inches per day, is approximately 25 percent of 9.84 inches per day. Id. The initial test done on a sample of the clayey sand, which lay beneath the topsoil at depths of 3.5 to 5.5 feet, indicated a permeability of 0.0001 feet per day. Thereafter, Mr. Smith did other testing and "made some general assumptions" (S. 235) and concluded that "an area-wide permeability of this clayey sand would be more on the order of 0.0144 feet per day." (S. 234). Still later a test of the sample taken during the hearing recess indicated hydraulic conductivity of 0.11 feet per day. SFP's Exhibit No. 10. The more than thousandfold increase in measured conductivity between the first laboratory analysis and the second is attributable in some degree to the different proportions of fines found in the two samples. The soil conductivity test results depend not only on the composition of the sample, but also on how wet the sample was before testing began. Vertical Conductivity Inferred On March 6, 1986, ground water was observed on the site about two and a half feet below the surface. SFP's expert, Mr. Smith, concluded that it was "essentially a 1.5 foot water table, perched water table over the clay." (0.422). There was, however, groundwater below, as well as above, the clay. On March 12, 1986, the water table at this point had fallen six inches. In the preceding month rainfall of 5.9 inches had been measured in the vicinity, after 5.1 inches had been measured in January of 1986, but in November and December of 1985 "there was a total of 0.6 inches of rainfall." (0.421). Later in the year, notwithstanding typically wet summer weather, no water table was measured at this point. From this Mr. Smith concluded that, once the clayey sand layer is wetted to the point of saturation, conductivity increases dramatically. If that were the case, a more or less steady stream of effluent could serve to keep the clayey sand wetted and percolation at design rates should not be a problem. But Dr. Bottcher, the hydrologist and soil physicist called as a witness for the Association, testified that the six- inch drop over six days could be attributed, in large part, to evapotranspiration. He rejected the hypothesis that the clayey sand's conductivity increased dramatically with saturation, since "the actual water table was observed . about three weeks after the very heavy rainfall had stopped" (0.290) and had probably been present for at least a month; and because the soil survey for Alachua County reports that perched water tables ordinarily persist for two months (0.227) in this type of soil. Certain soils' hydraulic conductivity does diminish with dessication, but such soils usually regain their accustomed conductivity within hours of rewetting. Dr. Bottcher rejected as unrealistically optimistic the assumption SFP's expert made about the conductivity of the clayey sand on grounds that "the conductivity that . . . [SFP] used, if you went out there you couldn't perch a water table for a month." (0.277). In these respects, Dr. Bottcher's testimony at hearing has been credited. In the opinion of the geologist who testified on behalf of the Association, Dr. Randazzo, a minimum of seven or eight additional augur borings in "definitive patterns to the northeast and to the northwest" (0.240) to depths of 15 to 20 feet, with measurements within each augur boring every two feet, are necessary to determine "how permeable the soils are and how fast the waters would move through them." (0.240). This testimony and the testimony of the soil physicist and others to the same general effect have been credited, and Mr. Smith's testimony that no further testing is indicated has been rejected. Wet Ground In the expert opinion of a geologist who testified at hearing, "it is reasonable to assume that saturation conditions of the surficial aquifer in this area can be achieved," (0.238) even without adding effluent from a wastewater treatment plant. The evidence that soils in the vicinity of the site have a limited capacity to percolate .water came not only from engineers and scientists. Charles S. Humphries, the owner of the property 150 feet from the proposed percolation site, "put a fence post line . . . every ten feet, and every ten feet [he] hit clay." (0.372). Three quarters of an inch of rain results in waters standing overnight in neighboring pastures. In parts of the same pastures, rain from a front moving through "will stay for a week or so." (0.373). It is apparent that the area cannot percolate all the rainfall it receives. This is the explanation for the gully leading down toward Gator Cove. Six-feet deep (0.377), "the gully is a result of natural surface runoff." (0.263).
The Issue Whether Okaloosa County has provided reasonable assurances that its proposed sewage treatment plant and an associated reclaimed water reuse system will not cause pollution significantly degrading the waters of the unnamed stream on the project site and/or the Santa Rosa Sound and that therefore the County's application for a permit to construct such facilities should be granted on the basis of assurances of compliance with applicable rule and statutory criteria.
Findings Of Fact On October 16, 1987, Respondent, Okaloosa County, submitted an application to Respondent, Department of Environmental Regulation, to construct a wastewater treatment plant and related reclaimed water reuse facilities on a site located in southwestern Okaloosa County. The Petitioner is an individual citizen residing in Okaloosa County, Florida. He is the owner of real property which adjoins the northern boundary of the proposed project site. Mr. Ward has used this property as his principal residence for approximately 8 years. The proposed project site is located in southwest Okaloosa County contiguous to the western boundary of the County. The site comprises approximately 45 acres of land bounded on the west by Rosewood Drive and on the south by State Highway 98. The areas to the north and east are residential construction. The site is currently a densely wooded area vegetated with a variety of flora indigenous to the area. The site is essentially bisected by a small fresh water stream system which enters the site at the northwestern corner and runs diagonally to the southeastern corner where it flows through a series of culverts under State Highway 98. The stream system constitutes waters of the state subject to the Department's regulatory jurisdiction. In addition, there is an isolated wetland area of variable size in the northwestern section of the project site. The wetland area is not subject to the Department's regulatory authority. The stream system mentioned above intersects with another larger stream approximately 1000 feet southeast of the project site. These combined streams then meander into a tidal basin which empties into the Santa Rosa Sound approximately 2500 feet south of the project site. The Santa Rosa Sound has been designated as Class II waters of the state. The unnamed stream system on site, as well as the larger stream that it joins south of the site, are designated as Class III waters of the State. Southern Okaloosa County occupies a region of moderate elevation (0-70 feet above sea level) extending along a strip 10 or 15 miles wide along the coast of the Gulf of Mexico. Soils in this area are predominately fine sands low in organic matter. When dry, most of the soils have rapid internal drainage characteristics. The Plant The proposed plant is intended to treat sewage generated by the County's Western subregional service area. Initially, it will treat the flow currently handled by approximately 1400 septic tank systems and 9 package treatment plants within the area. The collection system which will transport the wastewater will be comprised of approximately 98,500 linear feet of 8 to 12 inch diameter gravity sewers. The transmission facilities to convey the raw wastewater from the new collection system will include the construction of approximately 29,400 linear feet of 4 to 10 inch diameter force main, 14 pump stations and approximately 32,100 linear feet of 8 to 12 inch diameter gravity interceptors. By the end of its first year of operation, the proposed facility is projected to receive and treat approximately 750,000 gallons per day ("GPD"). The projected flow through the wastewater facility in the year 2007 is 1,000,000 GPD. The proposed facility is best described as a 1,000,000 GPD capacity oxidation ditch treatment plant with nitrification and denitrification facilities. Reclaimed water reuse will be accomplished by a rapid infiltration basin system (RIB). Sludge from the system will be dewatered by a mechanical belt press system and disposed of at the County landfill. In order to address the question of potential odors which result from the operation of the plant, the facility was located as near the center of the property as possible in order to give as much buffer area as possible between the facility and the surrounding residential area. In addition, the design of the treatment facility incorporates a preprocess aeration tank equipped with an activated carbon airstripper system which is specifically designed to remove the odor from the wastewater influent. The treatment facility was also located near the center of the property in order to keep any noise resulting from the operation of the plant as far away from the surrounding area as possible. The plant utilizes noiseless gravity flow techniques and does not incorporate any blower or pump technology which usually cause a significant amount of noise in wastewater treatment plants. It is expected that the noise level from the operation of this facility would be less than the noise level generated from the traffic on State Highway 98 nearby. The plant is designed to minimize the adverse effects resulting from odors, noise, aerosol drift and lighting. The entire facility is enclosed by a fence. The facility is designed and does comply with the Florida Administrative Code requirements for protection from flooding. The proposed site is at a higher elevation than the established 100 year flood elevation for the area. The plant is designed so that every operational component of the plant has a backup system. The plant is equipped with an emergency generator capable of supplying sufficient power to operate the plant in the event of a power failure. The design of the plant complies with the standards provided by the Environmental Protection Agency for mechanical reliability. The information submitted for the Department's review in relation to the County's construction permit application addressed all the information required in Rule 17-6.037(10), Florida Administrative Code. The proposed plant facility is designed to leave a buffer zone approximately 200 feet wide between the reclaimed water reuse system and the stream system located on the project site. The construction plan prohibits any construction activities and/or clearing within the buffer area. This buffer area contains all the jurisdictional areas which are related to the stream system. The Treatment Process The waste treatment process proposed for this facility consists of secondary treatment, basic disinfection and pH control as defined in Rule 17- 6.060(1)(a)3, (c) and (d). The basic treatment process technology used in the proposed plant is described as a carousel activated sludge process. This process is a superior method of wastewater treatment because of its inherent stability, its reaction to shock and toxic loadings and the degree of process control that is available to the operator. The effluent limitations that the Department has established for this facility require that the effluent, after disinfection, contain not more than 20 mg/1 Biological Oxygen Demand ("BOD") and 20 mg/1 Total Suspended Solids ("TSS"). In addition, effluent standards require a basic level of disinfection which shall result in not more than 200 fecal coliform values per 100 ml of effluent sample. The chlorine residual in recovered water shall be maintained at 0.5 mg/1 minimum, after 15 minutes contact time at peak flow. The pH level in the effluent must be maintained in a range between 6.0 Q and 8.5. The County will be required to retain a Class B operator certified under the provisions of Chapter 17-16, Florida Administrative Code for day-to- day maintenance and operation of the treatment facilities. In addition, the facility must be staffed for a minimum of 16 hours per day, seven days a week by at least a Class C operator certified under the same provisions. A Class B operator shall be on call during all periods that the plant is unattended. At a minimum, the facility must produce reclaimed water which complies with water quality standards provided in Rule 17- 3.404, Florida Administrative Code, as it interacts with groundwater in the established zone of discharge ("ZOD"). The estimated ZOD is an area defined by the boundaries of the facility. These standards are essentially equal to drinking water standards provided in Rule 17-22, Florida Administrative Code. Because the soils under the site are rapid sands, the Department does not rely on them to significantly reduce total nitrogen in the reclaimed water through interaction with the soils and the groundwater table under the rapid infiltration basins. As a result, the proposed facility is limited to a Total Nitrogen limitation of 7 mg/1. This limitation is significantly less than the Department's rapid rate land application treatment standard for Total Nitrogen which is 12 mg/1 in the effluent, with no more than 10 mg/1 in the ground. The proposed plant is capable of producing the 7 mg/1 level under all flow conditions. The Rabid Infiltration Basins In conjunction with the County's application for a construction permit for the wastewater treatment plant itself, the County submitted an application for a reclaimed water reuse system construction permit for a system designed to handle the maximum plant discharge of 1,000,000 gallons of reclaimed water per day. The system is composed of a series of five rapid infiltration basins (RIB's) or percolation ponds designed to receive the daily reclaimed water loads from the operation of the plant and allow the water to percolate into the groundwater beneath the project site. The ponds are proposed to be used so that not all the ponds are working at the same time. On any given day, there will be 3 ponds receiving effluent from the plant and 2 ponds receiving no effluent. The proposed system of rapid infiltration basins is the best approach to effluent disposal on this particular site in consideration of a variety of site specific criteria. While the Department's adopted guidance standards for percolation pond location specifies that areas with average depths to the groundwater table of 10 feet or more are desirable, the guidance document provides that areas with lesser depths may be acceptable. Computer models using highest projected groundwater levels and highest reasonably projected mounding effects related to the effluent disposal system indicate that while at times there may be less than 3 feet of vertical separation between the top of the groundwater mounds beneath any one of the percolation ponds and the floor of those ponds, it is not expected that the groundwater level will intersect the bottoms of the infiltration basin and that an acceptable margin will be maintained. Initially, there was some dispute among Department staff concerning the suitability of the project site to handle the hydraulic loading rates proposed for the facility's pond system. After a significant amount of analysis of the relevant factors affecting site suitability in this regard and after Department staff managed to get the computer program which analyzes this data working properly, the relevant data indicates that the site is suitable for the proposed wastewater treatment plant as designed. Surface and Ground Water Impact The proposed facility is designed to meet applicable Department water quality standards necessary to prevent unacceptable degradation of the water quality in both the unnamed stream system on site and the Santa Rosa Sound. At the Department's request, the County had an independent study performed to assure that the operation of the facility would not have the effect of degrading nearby surface waters. This study, done by Larry Jacobs and Associates, supports the County consultant's projections that, under worst case conditions (highest observed groundwater levels plus maximum effluent loading), approximately 32,000 additional gallons per day of groundwater may enter the stream system as a result of operation of the RIB system. These studies were conducted to address the Department's concern about the potential for increased nitrogen loading into both the stream system and the Santa Rosa Sound as a result of increased groundwater contributions to the stream system on site. The effluent disposal study submitted by the County as part of its application concludes that, discounting any possible reduction of Total Nitrogen content of the effluent as it travels through the ground before its discharged into the stream system, the Total Nitrogen concentration of the groundwater predicted to reach the stream should be diluted at the lowest observed flow volumes in the system to a concentration of less than 1 mg/1 when it reaches the confluence of the two streams approximately 1,000 feet south of the project site. The projection is an improvement in surface water conditions when compared with currently observed average concentrations of Total Nitrogen in the stream system and Santa Rosa Sound of 1.24 mg/1. The performance of existing package plants in the area is generally poor. In fact, one treatment plant was ordered to close, forcing the relocation of residents in its service area. Another plant has continuing groundwater nitrate violations. In addition, the evidence shows that the performance of the septic tank systems in the area is not acceptable to the Environmental Protection Agency. The majority of the population is served by septic systems that fail under high groundwater conditions. The Director of the Okaloosa County Health Department has certified that 60% of the residents in the County West Service Area have failed septic tanks and that the remaining 40% have septic tanks in imminent danger of failing. Three of the eight existing treatment plants are under either Court or Consent orders to cease operations. The United States Environmental Protection Agency has found that the County West area has an immediate need to provide collection, transmission, and treatment facilities to protect surface and groundwaters and eliminate a public hazard. Existing concentration of Total Nitrogen in Santa Rosa Sound and the waterways on and adjacent to the site are attributed to discharge of inadequately treated wastewater from existing septic tanks, existing wastewater treatment plants and stormwater runoff in the area. It is unlikely that the nitrogen concentration in the Santa Rosa Sound will increase as a result of the operation of the proposed facility since whatever wastewater treated at the facility will be eliminated from discharging into the affected waterbodies from other, less efficient treatment facilities. The proposed facility design incorporates a total of seventeen monitoring wells or stations on and around the site. Two wells will monitor background groundwater quality upgradient from the percolation pond system. Twelve wells will monitor groundwater quality down gradient from the percolation pond system as it leaves the established zone of discharge. Two more stations will monitor surface water quality in the on-site system above and below the site. In addition, there is one intermediate monitoring well within the zone of discharge. Samples from these wells will be used to provide quarterly data reports to the Department indicating status of the following parameters in the ground water; water level, pH, BODs, Fecal Coliform, Total Nitrogen, Nitrate/Nitrate and Chloride. The surface water monitoring will provide annual data reports to the Department on the following parameters: Chemical/Physical - Total Nitrogen, Nitrate/Nitrate, Total Phosphorus, Dissolved Oxygen, Temperature and pH Biological Assessment - macroinvertebrate population per species, species diversity per square meter. These data reports will be submitted regularly to the Department in conjunction with operational monitoring data from the treatment plant to allow assessment of the impact of the plant operation on the environment and compliance with permit conditions. Clearly the County has provided reasonable assurances that the proposed plant and related facilities will not cause pollution significantly degrading the waters of the State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order Granting the application of Okaloosa County to construct a wastewater treatment facility and related reclaimed water reuse system at the proposed site in southwestern Okaloosa County, Florida, and issuing permits in accordance with the conditions as set forth in the Department's Intent to Issue and draft permit dated August 1, 1988. DONE and ENTERED this 1st day of June, 1989, in Tallahassee, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1989. APPENDIX Petitioner's paragraph 1 of his Proposed Findings of Facts (titled Closing Statement) did not contain any factual statements. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Facts are subordinate. All the evidence contrary to the suitability of the Project site was explained by other more credible evidence. The facts contained in paragraphs 1-29 of Respondent's Proposed Findings of Facts are adopted in substance, in so far as material. COPIES FURNISHED: Ron Ward Qualified Representative For J. P. Ward 10 Rosewood Drive Mary Esther, Florida 32569 John R. Dowd, Esquire Representing Okaloosa County P. O. Box 404 Shalimar, Florida 32579 Steven K. Hall, Esquire Assistant General Counsel Representing the Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 (A Dale H. Twachtmann, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On or about December 28, 1987 Hy Kom filed with the Department an application for a permit to construct a .0126 MGD Advanced Waste Water Treatment Plant on Emerson Point, Snead Island in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Terra Ceia Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Tampa Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Manatee River in Manatee County. The waters of Terra Ceia Bay have been designated Outstanding Florida Waters (OFW) by the Department. On or about April 27, 1989 the Department issued a Notice of Permit Denial concerning Hy Kom's permit application. The parties stipulate the Intervenor, Manasota-88, has standing to intervene as a party Respondent and to object to the issuance of the permit. Petitioner's evidence can best be summarized by what was not submitted. First, the expert witness called to identify the application had not prepared any part of the application or verified any of the studies presented therein. Similarly Petitioner's expert on the proposed treatment plant did not testify that Petitioner was committed to using this plant, or that the construction of the plant and the operation of the plant would comply with statutory and rule requirements. The only witness called by Petitioner to testify to the effect the discharge from the proposed advanced waste water treatment plant would have on the receiving waters was also Respondent's expert; and this witness testified that the effluent discharge from this proposed plant would have an adverse effect on the receiving waters, would seriously degrade the receiving waters as a nursery habitat for both crustacea and fishes endemic to the area, and that no reasonable assurances that this would not happen were ever presented by the Petitioner. This witness further testified that no discharge into these receiving waters would be acceptable not only because of the nitrogen level (which was the most significant reason for denying the permit) but also because even a discharge of absolutely pure water would upset the salinity of the receiving waters at the critical time the receiving waters act as a marine nursery.
Recommendation It is RECOMMENDED that a Final Order be entered denying the application of Hy Kom Development Company, for a permit to construct and operate an advanced waste water treatment facility at Emerson Point, Snead Island, Manatee County, Florida. DONE and ORDERED this _15th_ day of September, 1992 in Tallahassee, Leon County, Florida. COPIES FURNISHED: JAMES W. STARNS ESQ 501 GOODLETTE RD SUITE D-100-24 NAPLES FL 33940 W DOUGLAS BEASON ESQ ASST GENERAL COUNSEL K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this _15th_ day of September, 1992. DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 THOMAS W REESE ESQ 123 EIGHTH ST N ST PETERSBURG FL 33701 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER SECRETARY DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
The Issue The matter to be resolved by this Recommended Order concerns the Petitioner's Notice of Violation and Order of Corrective Action filed against the Respondent on the subject of alleged violations by the Respondent of the "Florida Safe Drinking Water Act", Sections 403.850 through 403.864, Florida Statutes. Within this complaint document there are six counts constituted of the following allegations: Count I. The Respondent does not continually apply effective disinfection measures to the water distributed to the service connections of the Respondent's water system. Respondent's water system has chlorination equipment installed but a chlorine residual is not continually maintained. This condition has existed since at least February, 1979. These facts show a violation of Rule 17- 22.106(3)(c), Florida Administrative Code. Count II. The Department has not received reports from the Respondent which contain information about the operation and maintenance of the water system. This condition has existed since at least April, 1978. These facts show a violation of Rule 17-22.111(2), Florida Administrative Code. Count III. The Respondent's water system has a daily flow of more than 2,500 gallons per day but less than 0.1 million gallons per day. The operation, maintenance and supervision, if any, of the water system is not performed by a person who has passed an examination that entitled such person to be a certified operator. This condition has existed since at least April, 1978. These facts show a violation of Rule 17-22.107(3)(b), Florida Administrative Code. Count IV. The slab surrounding the well casing has been broken exposing the system to possible contamination. This condition has existed since at least February, 1979. These facts show a violation of Rule 17-22.106(2)(c)2.e., Florida Administrative Code. Count V. The Respondent`s water system has no flow meter for accurately measuring the volume of water distributed by the public water system. This condition has existed since at least February, 1979. These facts show a violation of Rule 17-22.106(3)(g), Florida Administrative Code. Count VI. The Petitioner has incurred costs and expenses in the amount of $57.22 in the course of investigating the case and is entitled to be reimbursed pursuant to Subsection 403.860(3), Florida Statutes.
Findings Of Fact This case is presented for consideration based upon the Notice of Violation and Order of Correction filed by the Secretary of the State of Florida, Department of Environmental Regulation, on August 24, 1979. The action is taken against Arnold H. Parker, an individual who resides in Escambia County, Florida. On September 17, 1979, the Respondent, Parker, by and through his counsel answered the allegations of the Petitioner and requested a Subsection 120.57(1), Florida Statutes, hearing. The request for hearing was granted and on December 6, 1979, in Florida, a formal hearing was held to consider the Petitioner's complaint. (The essential elements of that complaint are reflected in the synopsis reported in the Issue statement of this Recommended Order.) The facts reveal that Daniel C. Walker, an employee of Petitioner, went to Perdido Key, Escambia County, Florida, in February, 1979, for the purpose of inspecting a water system owned and operated by the Respondent and to ascertain the number of service connections associated with the system. When Walker arrived at the location of the Respondent's well, he observed that the above-ground equipment utilized in pumping the water out of the ground was housed in a building. This building had a hole in the roof and the concrete slab surrounding the well casing was broken at the surface allowing for possible contamination by influent. At the time of the inspection a device for introducing chlorine into the extracted water was noted but that device was not connected and no chlorine residual was found in the water system. The water system was not being operated by a certified operator within the meaning of Rule 17-22.107(3)(b), Florida Administrative Code. In addition, the Respondent had not submitted operational reports to the Petitioner since April, 1978. The reports referred to are those reports required by Rule 17- 22.111(2), Florida Administrative Code. While Walker was at the general location of the well in onestion, he observed forty individual lots on which various types of trailers, campers and mobile homes could be found. Walker did not determine if persons were living in these shelters and he does not recall seeing persons in the area of the lots. The witness, Walker, did not observe any restaurant or public food establishment in the area of the well house and lots. On September 25, 1979, Robert Court, another employee of the Petitioner, went to the site of the well house and lots. At that time he counted thirty-two trailers, campers and mobile homes and each of those shelters had a service connection from the well of the Respondent located somewhere on the lot where the shelter was found. The service connection was in the form of a spigot. Court observed several people in the north-east section of the general area which is constituted of the well location and lots. Court returned to the location on November 30, 1979, and in a random survey saw approximately thirty-two trailers, campers and mobile hones. Subsequent to the visits of the employees, the Notice of Violation and Order of Correction was prepared by the enforcement section of the Petitioner and the cost of that preparation was $57.22. The Respondent, Arnold H. Parker, testified in the course of the hearing and his testimony established that there are nine persons who live in the area of the well on a year-round basis and these persons are served by the well during that period of time. Of the nine persons one family, the family of the Respondent, lives in a mobile home and the family is constituted of three persons, the Respondent, his wife and son. In a second mobile home the Respondent's daughter and her husband are found to reside. The final group of persons constituted of the nine full-time residents are the Respondent's daughter, her husband and two children in a third mobile home. Each lot on which the three mobile homes are found is served by a service connection. The remaining lots at the location in question were subdivided approximately two years prior to the hearing date and sold separately with the exception of the three lots where the nine permanent residents reside and two lots where other children of the Respondent resided prior to the February, 1979, inspection by the Petitioner's employee. Respondant sold twenty-four mobile home lots and twelve camper sites to persons other than family members and each of the mobile home lots and camper sites has a service connection to the well. Those persons who use the water system other than the nine permanent residents, use the system from mid-March through mid-September in the calendar year. During that time of usage, there are two families at two separate lots who come down during the week and use the water supply. The number of members in those families was not indicated in the course of the hearing. The balance of the persons using the water supply, excluding the above-mentioned two families and the nine permanent residents, use the shelters for vacation purposes and on the weekend. Some of this latter group would be vacationing in their summer home for a period as long as two weeks. The highest number of persons using the water from the well during the vacation period would be approximately forty persons during holiday weekends in the vacation cycle. From the testimony of the Respondent there would never be more than ten days during the vacation period in which twenty-five or more persons would be utilizing the water supply from the well. The water is brought into the trailers, campers and mobile hones by hoses attached to the spigot service connections and the hoses are removed when the individual owners are not in attendance. The lot owners who are served by the water system of the Respondent pay a fee of $18.00 a year, which the Respondent uses to repair the well pump, for pipe and for the cost of electricity to run the well. The well generating device is a two-horsepower electric pump and the well source is tapped by a two-inch service pipe. A one-half-inch line runs from the main to the service connectors (spigot). After the inspection of February, 1979, the Respondent repaired the broken slab around the well casing and these repairs were made in March or April, 1979. The repairs were depicted in the Respondent's Exhibits 1 and 2 admitted into evidence which are photographs of the well casing after the repair.
Recommendation It is recommended that the action taken by the Petitioner against Respondent pursuant to the Notice of Violation and the Order for Corrective Action be dismissed, to include the Petitioner's claim for costs and expenses. DONE AND ENTERED this 7th day of January, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William Hyde, Esquire Department of Environmental Regulation 2600 Blair Stone Read Tallahassee, Florida 32301 Barne J. Morain, Esquire 113 North Palafox Street Pensacola, Florida 32501
