The Issue Whether Pasco County should be granted operating permits for Embassy Hills Wastewater Treatment Plant (WWTP) (Case 92-2489); Hudson WWTP (Case 92-2489); Hudson WWTP (Case 92-2488); and 8 Rapid Rate Infiltration Basins (RRIB) in Northwest Pasco County (Case 93-3091); whether the permit for RRIB should be granted to construct 10 RRIBs rather than 8 (Case 93-3641); whether these facilities can be operated without damage to the area potable and ground water systems; and whether the operating permit should include the provisions of a settlement agreement entered into between Matis, Pasco County and DER dated December 7, 1987. Whether the challenge to these permits was timely filed by Petitioner was resolved prior to the hearing and will not be revisited.
Findings Of Fact (Findings 1-80 below are from the prehearing stipulation submitted by the parties) The County is a political subdivision of the State of Florida, and owns and operates a wastewater collection, treatment, and disposal system in Pasco County, Florida. The Department is a state agency created pursuant to Section 20.261, Florida Statutes, and is responsible for protecting Florida's air and water resources in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. Matis owns and resides at 11220 Denton Avenue, Hudson, Pasco County, Florida; her property is approximately 330 acres in size. In 1987, Matis filed a petition for formal administrative hearing against the Department and the County, in which she challenged the Department's proposed agency action to approve the County's applications for construction permits concerning the Embassy Hills WWTP (Permit Number DC51-128933) and the Hudson WWTP (Permit Number DC51-130307). That case was subsequently assigned DOAH Case No. 87-4781. Case No. 87-4781 was resolved by virtue of the 1987 Settlement Agreement. Matis, the County, and the Department were each parties to the 1987 Settlement Agreement. Paragraph 1(c) of the 1987 Settlement Agreement states: That the Respondent, Pasco County, will modify the permit application No. DC51-128933 as follows: . . . (c) The County agrees to reduce the number of ponds constructed at the Embassy disposal site located on Denton Avenue from fourteen (14) to nine (9) ponds by eliminating the five (5) most easterly ponds depicted on the County's construction plans; . . . The County subsequently modified its application for Permit Number DC51-128933 so as to delete the five most easterly ponds referred to in paragraph 1(c) of the 1987 Settlement Agreement. The Department subsequently issued Permit Numbers DC51-128933 and DC51- 130307, authorizing construction of the Embassy Hills and Hudson facilities, respectively. Permit Number DC51-128933 did not include authorization to construct the five ponds referred to in paragraph 1(c) of the 1987 Settlement Agreement. The County has not violated that portion of Section 2 of the Stipulated Settlement Agreement between the County, the Department and Matis which requires the County to construct a Floridian Aquifer and shallow aquifer monitor well cluster at the Hudson WWTP site at a location acceptable to Matis. The County has not violated that portion of Section 2 of the Stipulated Settlement Agreement which requires the County to monitor effluent discharged from the Hudson WWTP on a quarterly basis for the parameters specified in EPA Methods 601 and 602. The County has not violated Section 10 of the Stipulated Settlement Agreement. The County has not violated Section 13 of the Stipulated Settlement Agreement. The County has not violated Section 14 of the Stipulated Settlement Agreement. If the County and the Department comply with the 1987 Settlement Agreement, Matis will not be adversely affected by the proposed operation permits for the Embassy Hills and Hudson WWTPs (Permit Numbers DO51-203667 and DO51-203666). The County applied for Permit DO51-203666 (Hudson WWTP) on appropriate Department forms. The County applied for Permit DO51-203667 (Embassy Hills WWTP) on appropriate Department forms. The County's application for Permit DO51-203666 (Hudson WWTP) was certified by a professional engineer registered in the State of Florida. The County's application for Permit DO51-203667 (Embassy Hills WWTP) was certified by a professional engineer registered in the State of Florida. The County's application for Permit DO51-203666 (Hudson WWTP) was accompanied by a written certification by the permittee on Form 17-600.910(2) that an appropriate operation and maintenance manual is available at a specified location for the Hudson WWTP and the on-site percolation pond system. The County's application for Permit DO51-203667 (Embassy Hills WWTP) was accompanied by a written certification by the permittee on Form 17- 600.910(2) that an appropriate operation and maintenance manual is available at a specified location for the Embassy Hills WWTP and each associated disposal site. The Hudson WWTP is a Type I facility. The Embassy Hills WWTP is a Type I facility. The Hudson WWTP is enclosed with a fence or otherwise designed to discourage the entry of animals and unauthorized persons. The Embassy Hills WWTP is enclosed with a fence or otherwise designed to discourage the entry of animals and unauthorized persons. The Hudson WWTP's on-site percolation pond system is a Type I facility. The Denton Avenue Percolation Pond System is a Type I facility. The proposed Northwest RRIBs project is a Type I facility. The Hudson WWTP's on-site percolation pond system is a rapid rate land application system, as that term is defined in 17-610.510. The Denton Avenue Percolation Pond System is a rapid rate land application system as that term is defined in Rule 17-610.510, Florida Administrative Code. The Northwest RRIBs project is a rapid rate land application system, as that term is defined in Rule 17-610.510, Florida Administrative Code. There are no storage or holding ponds incorporated in the Hudson WWTP's on-site percolation pond system. There are no storage or holding ponds incorporation in the Denton Avenue Percolation Pond System. There are no storage or holding ponds proposed for the Northwest RRIBs project. The Hudson WWTP's on-site percolation ponds are designed to provide at least three feet of freeboard. The Denton Avenue Percolation Ponds are designed to provide at least three feet of freeboard. The Northwest RRIBs are designed to provide at least three feet of freeboard. Signs or other type of notice are posted around the Hudson WWTP's on- site percolation pond system, which designate the nature of the project area. Signs or other type of notice are posted around the Denton Avenue Percolation Pond site, which designate the nature of the project area. Signs or other type of notice will be posted around the Northwest RRIBs site, which designate the nature of the project area. There is fencing around the Hudson WWTP's percolation ponds on-site. There is fencing around the percolation ponds at the Denton Avenue Percolation Ponds site. There will be fencing around the percolation ponds at the Northwest RRIBs site. There is a set back distance of at least 500 feet from the edge of the percolation ponds at the Denton Avenue Percolation Pond site to any potable water supply well. There will be a set back distance of at least 500 feet from the edge of the percolation ponds at the Northwest RRIBs site to any potable water supply well. There is a set back distance of at lest 500 feet from the edge of the Hudson WWTP's percolation ponds on-site to any Class I Water. There is a set back distance of at least 500 feet from the edge of the percolation ponds at the Denton Avenue Percolation Pond site to any Class I Water. There will be a set back distance of at least 500 feet from the edge of the percolation ponds at the Northwest RRIBs site to any Class I Water. There is a set back distance of at least 500 feet from the edge of the Hudson WWTP's percolation ponds on-site to any Class II Water. There is a set back distance of at least 500 feet from the edge of the percolation ponds at the Denton Avenue Percolation Pond site to any Class II Water. There is a set back distance of at least 500 feet form the edge of the percolation ponds at the Northwest RRIBs site to any Class II Water. There is a set back distance of at least 100 feet from any Hudson WWTP wastewater transmission facility to any public water supply well. There is a set back distance of at least 100 feet from the Denton Avenue Percolation Pond site to any public water supply well. There is a set back distance of at least 100 feet from the Northwest RRIBs site to any public water supply well. Matis does not object to or challenge that portion of proposed Permit Number DO51-203667 (Embassy Hills WWTP) which relates to the Fox Hollow Percolation Pond System. Matis does not object to or challenge that portion of proposed Permit Number DO51-203667 (Embassy Hills WWTP) which relates to the Beacon Woods Golf Course Reuse System. Matis does not object to or challenge that portion of proposed Permit Number DO51-203667 (Embassy Hills WWTP) which relates to the Beacon Woods East Golf Course Reuse System. Matis does not object to or challenge that portion of proposed Permit Number DO51-203667 (Embassy Hills WWTP) which relates to the Timber Oaks Golf Course Reuse System. On December 23, 1992, the Department's Intent to Issue Permit Number DC51-214670 was published in the Pasco Times. On December 23, 1992, Matis saw and read an Intent to Issue Permit Number DC51-214670 published in the Pasco Times. Matis' property receives wastewater service from a septic tank located on the east side of her house. Matis' septic tank was installed in 1965, and it has not been replaced or serviced since that time. Since Matis' septic tank was installed in 1965, she has never had any wastewater removed from it. Matis is not aware of any water quality or contamination problems on her property. All water quality analyses which Matis has performed on her well water has revealed no contamination. Matis has never experienced an inability to pump water from her wells. Matis is not aware of any land collapse or sinkhole problems on her property. Matis' property includes approximately 240 to 250 acres of planted pine trees. Matis has had cattle operations on her property since around 1967. Presently, Matis has approximately 30 head of cattle on her property. Matis is not aware of any adverse affects to her agricultural operations caused by the historical operations of the County's wastewater facilities. Matis is not aware of any adverse affects to her property caused by the historical operations of the County's existing wastewater facilities. Matis is not an expert in the field of engineering, geology, hydrology, hydrogeology, wastewater system design, wastewater system operation, wastewater treatment methods, wastewater disinfection, sinkhole formation, biology, botany, ecology, groundwater modeling, water quality analysis, or air quality analysis. By letter dated November 17, 1992, Attorney William Deane requested the Department to provide his client (Respondent Marie Cook Matis), through his office, actual notice of the proposed agency action regarding the Northwest RRIBs construction permit application. On December 22, 1992, the Department furnished Matis (via her attorney, Mr. Deane) a telephonic facsimile copy of an Intent to Issue Permit Number DC51-214670 for the Northwest RRIBs. On December 23, 1992, the County (as permit applicant) had an Intent to Issue Permit Number DC51-214670 published in the Pasco Times. On December 23, 1992, the Pasco Times was a newspaper of general circulation in the area affected by the Northwest RRIBs project. On December 29, 1992, the Department's Southwest District Office hand delivered a copy of the Intent to Issue Permit Number DC51-214670 to Matis. On or about January 5, 1993, Mr. Deane's associate (i.e., Attorney Charles Hinton) sent the Department's attorney, Francine Ffolkes, a letter which stated: RE: Construction Permit Number DC51-214670 Northwest Pasco Rapid Infiltration Basins Notice of Intent Dear Ms. Ffolkes: This is to confirm our conversation this morning regarding the above referenced permit. Pursuant to that conversation, it is our understanding that Ms. Matis received actual notice of the above-referenced Notice of Intent on December 29, 1992. Accordingly, Ms. Matis has until January 12, 1993 to file a motion or objection to this permit. If this is in anyway incorrect, please contact my office immediately. Sincerely, /s/ Charles D. Hinton Charles D. Hinton Sent by facsimile this 5 day of January, 1993. Mr. Hinton did not send a copy of the foregoing letter to the County or otherwise advise the County regarding his conversation with Ms. Ffolkes. On January 12, 1993, Matis' Petition for Formal Administrative Hearing concerning the Northwest RRIBs construction permit (Permit Number DC51-214670) was received by the Department's Office of General Counsel. Matis' sole objection to the proposed operating permits for Embassy Hills WWTP and Hudson WWTP is that they do not incorporate the terms of the 1987 Settlement Agreement. No evidence was submitted that Pasco County is not complying with the terms of this settlement agreement or that the operation of these plants will in any wise affect Matis' property. The evidence is unrebutted that these plants have been operating for over two years without violations and that the effluent from these plants meets all statutory and regulatory requirements. So far as practicable the treated wastewater from these plants (and other WWTPs operated by Pasco County) is reused for irrigating golf courses, orange groves, and for residential irrigation. It is only during rainy periods when irrigation is not called for that this effluent is discharged through the infiltration basins. Both of these plants are Type I conventional activated sludge with anoxic denitrification wastewater treatment plants and meet the limitations for ph, BOD, nitrates, chlorine, sodium and dissolved solids contained in the proposed operating permit conditions. Although these operating limits for BOD, TSS and nitrates in the proposed operating permit exceed those in the construction permit and the Settlement Agreement, the proposed permit meets all statutory and regulatory requirements which the Department is called upon to enforce. The actual operation of these WWTPs meet the elevated standards of 15BOD, 5TSS, and 10 nitrates contained in the construction permit and Settlement Agreement. Accordingly, Pasco County is in compliance with the Settlement Agreement. Pasco County, like much of central Florida, is a Karst area subject to sinkholes. To insure the proposed rapid rate infiltration basins will not constitute a threat to the aquifer below the sites selected for these RRIBs, transects were taken, and the U.S. Department of Agriculture, Soil Conservation Service was engaged to conduct ground penetrating radar (GPR) studies of these areas. For any of those areas showing a possibility of below ground caverns or other evidence of potential sinkhole, borings were taken to determine the conditions below the surface of the ground. The GPR survey coupled with these "truth" borings revealed that the sites selected for these RRIBs are safe and appropriate for use as infiltration basins to receive the treated effluent from these plants. Five of the proposed RRIBs located closest to Matis' property were removed from the 1987 Pasco County construction permit application as a result of the Settlement Agreement. That Agreement did not preclude Pasco County from later seeking authorization to construct these RRIBs. It is the construction of these five RRIBs that Matis here protests. Matis' property is upgrade from these RRIBs and from the WWTPs here involved. Accordingly, it is virtually impossible for effluent from these RRIBs to reach Matis' property or her potable water well. In fact, the most likely source of contamination of Matis' potable water well is Matis' septic tank which is located upgrade from her potable water well. Pasco County currently reaches about 80 percent utilization of the effluent from its WWTPs as reused water for irrigation of golf courses, orange groves, residences, etc. It is seeking 100 percent utilization of its treated effluent for reuse. This will conserve potable water from the aquifers and better enable Pasco County to supply adequate potable water to its increasing population. To accomplish better reuse of treated effluent from its WWTPs Pasco County intends to install a master reuse plan wherein wastewater effluent from all the WWTPs in the county would feed into a single looped system. This system would intermingle all of the wastewater and then dispose of this wastewater at all of the county's reuse points. When the reuse points cannot absorb the wastewater due to rain or high water conditions, the wastewater would be discharged into the RRIBs. Although the construction of the additional five RRIBs to which Matis objects exceed the minimal disposal capacity required by the Department, having this excess disposal capacity reduces the possibility of contamination of surface waters from the treated wastewater from these WWTPs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Permit Number DO51-203666 be issued for the operation of Hudson WWTP; that Permit Number DO51-203667 be issued for the operation of Embassy Hills WWTP; and that Permit Number DC51-214670 be issued for construction of the ten Northwest Pasco County RRIBs. DONE AND ENTERED this 22nd day of October, 1993, in Tallahassee, Leon County, Florida. 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 22nd day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2488 Proposed findings submitted by Petitioner are accepted except as noted below. Those neither accepted nor noted below were deemed unnecessary to the conclusions reached. 16. Rejected in part. Matis saw the Notice of Intent to issue the permits here at issue published in the Pasco Times on December 23, 1992, and on December 22, 1992, Matis' attorney was furnished a facsimile copy of this notice. A copy was personally delivered to Matis by a DER representative on December 29, 1992. 24. Rejected. 30-32. Rejected as irrelevant. Rejected. DER adopted the proposed findings submitted by Pasco County. Those findings are accepted. Proposed findings submitted by Pasco County and not included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached largely because Petitioner Matis challenged only the refusal of DER to include the provisions of the Settlement Agreement in the operation permit for the WWTPs and to grant construction permits for the five RRIBs withdrawn from the petition in 1987 as a result of the Settlement Agreement. COPIES FURNISHED: William W. Deane, Esquire Charles D. Hinton, Esquire Deane & Hinton, P.A. Post Office Box 7473 St. Petersburg, Florida 33734 David M. Caldevilla, Esquire Post Office Box 172537 Tampa, Florida 33672 Francine M. Ffolkes, Esquire Keith Hetrick, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is liable to Petitioner Department of Environmental Protection (Department) for penalties and costs for the violations alleged in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV).
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, 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."3 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 the water quality of 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 St. Lucie River area near Laniger's WWTP 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. The Department notified Laniger that its WWTP was listed as a threat to the water quality of the lagoon system soon after the 1991 report was issued. The Department's 1991 report concluded that the solution for package plants threats was to replace them with centralized sewage collection and treatment facilities. To date, over 90 of the 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 [sic] 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." Most of the parties' evidence and argument was directed to the following requirements of the administrative order: Beacon 21 WWTP shall connect to the centralized wastewater collection and treatment within 150 days of its availability and properly abandoned facility [sic] or provide reasonable assurance in accordance with Chapter 62-620.320(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 and will not cause pollution in contravention of chapter 403, F.S. and Chapter 62-610.850 of the Florida Administrative Code. * * * (3) Beacon 21 WWTP shall provide this office with semi annual reports outlining progress toward compliance with the time frames specified in paragraph 1 of this section, beginning on the issuance date of permit number FLA013879-002-DW3P. The administrative order contained a "Notice of Rights" which informed Laniger of the procedures that had to be followed to challenge the administrative order. Laniger did not challenge the administrative order. 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. The 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. Correspondence Regarding Compliance Issues On August 21, 2001, following an inspection of the Laniger WWTP, the Department sent Laniger a letter that identified some deficiencies, one of which was Laniger's failure to submit the semi-annual progress reports required by the administrative order. Reginald Burge, president of Laniger and owner of the WWTP, responded by letter to William Thiel of the Department, stating that, "All reports were sent to the West Palm Beach office. Copies are attached." Mr. Thiel testified that the progress reports were not attached to Laniger's letter and he informed Laniger that the reports were not attached. Mr. Burge testified that he subsequently hand-delivered the reports. At the hearing, it was disclosed that Laniger believed its semi-annual groundwater monitoring reports satisfied the requirement for progress reports and it was the monitoring reports that Mr. Burge was referring to in his correspondence and which he hand-delivered to the Department. Laniger's position in this regard, however, was not made clear in its correspondence to the Department and the Department apparently never understood Laniger's position until after issuance of the NOV. 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, the Department received a response from Laniger's attorney, 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. It was also stated in the letter from Laniger's attorney that "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] Order."4 On May 29, 2003, the Department replied, pointing out that the administrative order had found that reasonable assurance was not provided at the time of the issuance of the permit in 1999, and Laniger had made no "improvements or upgrades to the facility." The Department also reiterated that the progress reports had not been submitted. On September 29, 2003, the Department issued a formal 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 progress reports were not mentioned in the Warning Letter. The Department took no further formal action until it issued the NOV in August 2005. Count I: Failure to Timely File for Permit Renewal and Operating Without a Permit Count I of the NOV alleges that Laniger failed to submit its permit renewal application at least 180 days prior to the expiration of the 1999 permit, failed to obtain renewal of its permit, and is operating the WWTP without a valid permit. The date that was 180 days before the expiration of the 1999 permit was on or about February 27, 2004. Laniger did not submit its permit renewal application until February 15, 2005. In an "enforcement meeting" between Laniger and the Department following the issuance of the warning letter in September 2003, the Department told Laniger that it would not renew Laniger's WWTP permit. It was not established in the record whether this enforcement meeting took place before or after February 27, 2004. When Laniger filed its permit renewal application in February 2005, 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 requested that the Department to act on the permit application, and 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." Laniger filed a petition challenging the permit denial and that petition is the subject of DOAH Case 05-1599, which was consolidated for hearing with this enforcement case. Laniger's permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Count II: Failure to Submit Progress Reports Count II of the NOV alleges that Laniger failed to comply with the requirement of the administrative order to provide the Department with semi-annual reports of Laniger's progress toward connecting to a centralized sewage collection and treatment facility or providing reasonable assurances that continued operation of the WWTP would not be a threat to the water quality of the lagoon system. Laniger maintains that its groundwater monitoring reports satisfied the requirement for the semi-annual progress reports because they showed that the WWTP was meeting applicable water quality standards. The requirement for groundwater monitoring reports was set forth in a separate section of Laniger's permit from the requirement to provide the semi-annual progress reports. The monitoring reports were for the purpose of demonstrating whether the WWTP was violating drinking water quality standards in the groundwater beneath the WWTP site. They served a different purpose than the progress reports, which were to describe steps taken by Laniger to connect to a centralized sewage collection and treatment facility. Laniger's submittal of the groundwater monitoring reports did not satisfy the requirement for submitting semi-annual progress reports. There was testimony presented by the Department to suggest that it believed the semi-annual progress reports were also applicable to Laniger's demonstration of reasonable assurances that the WWTP was not a threat to the water quality of the lagoon system. However, the progress reports were for the express purpose of "outlining progress toward compliance with the time frames specified in paragraph 1." (emphasis added) The only time frame mentioned in paragraph 1 of the administrative order is connection to an available centralized wastewater collection and treatment facility "within 150 days of its availability." There is no reasonable construction of the wording of this condition that would require Laniger to submit semi-annual progress reports related to reasonable assurances that the WWTP is not a threat to the water quality of the lagoon system. Count III: Department Costs In Count III of the NOV, the Department demands $1,000.00 for its reasonable costs incurred in this case. Laniger did not dispute the Department's costs.
Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE 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 4th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
The Issue The issue is whether Resort Village Utility, Inc., and SGI Utility, LLC, are entitled to a renewal of a permit for the construction and operation of a wastewater treatment facility with effluent disposal to a rapid-rate absorption field land application system consisting of three absorption beds on St. George Island in Franklin County, Florida.
Findings Of Fact In 1996, DEP issued Permit No. 235845 (subsequently renumbered Permit No. FLA010069-001) to RVU. The permit was issued pursuant to Adams v. Resort Village Utility, Inc. and Department of Environmental Protection, DOAH Case No. 95-0863 (Final Order February 23, 1996). Petitioner, in the instant case, was the petitioner in the prior case. RVU and DEP, Respondents in the instant case, were respondents in the prior case. The original permit authorized RVU to construct and operate an advance wastewater treatment facility with associated reuse/land application system (AWT facility) in a proposed mixed-use development on St. George Island in Franklin County, Florida. Mr. Ben Johnson was the owner of the proposed development and the principal of RVU when DEP issued the original permit. DEP issued the original permit for five years with an expiration date of March 1, 2001. The instant case involves a renewal of the original permit, currently designated as Permit No. FLA010069-002 (the Permit). Since the issuance of the original permit, the AWT facility has been constructed in accordance with its plans and specifications. However, at the time of the final hearing in the instant case, the AWT facility was not operational. The original permit contained certain groundwater monitoring requirements. These requirements included baseline monitoring to collect data on certain contaminants or pollutants before the AWT facility becomes operational for comparison to groundwater monitoring after the AWT facility becomes operational. The original permit did not specify the time frame for beginning and ending the monitoring. RVU furnished DEP with a baseline groundwater monitoring report in December 1997 and June 1998. By letter dated June 15, 1998, Garlick Environmental Associates, Inc., on behalf of RVU, advised DEP that further baseline groundwater monitoring would be suspended until February 1999. RVU properly suspended the baseline groundwater monitoring because of a delay in the construction and operation of the AWT facility. At the time of the final hearing, RVU had not resumed the monitoring. The AWT facility is scheduled to become operational in incremental stages beginning with 30,000 gallons of effluent per day and increasing to 90,000 gallons of effluent per day. The monitoring requirements in the original permit and the instant Permit are sufficient to show at each stage of operation whether the AWT facility will cause an increase in contaminants in Apalachicola Bay. Because the AWT facility is not currently operational, it is not responsible for causing any pollution. In October 1999, Mr. Johnson sold the subject property to SGI Limited Partnership, a Florida limited partnership. Mr. David Wilder is a principal in SGI Limited Partnership and vice-president of SGI Utility, LLC. On February 10, 2000, RVU filed an application with DEP to transfer the original permit to SGI Utility, LLC. By letter dated February 18, 2000, DEP granted the request to transfer the permit contingent upon approval of the sale of the AWT facility by the Florida Public Service Commission (PSC). The February 18, 2000, letter states that DEP would change its records to show SGI Utility, LLC, as owner of St. George Island Resort Village domestic wastewater treatment facility. DEP's letter states that it shall be attached to and become part of domestic wastewater Permit No. FLA010069. On September 1, 2000, SGI Utility, LLC, filed an application with DEP to renew the original permit. The application indicates that SGI Utility, LLC, is the applicant/owner/operator of the AWT facility. Mr. Wilder signed the application as the authorized representative of SGI Utility, LLC. A professional engineer signed the application in his professional capacity, as well as agent for SGI Utility, LLC. The application for permit renewal contains a copy of RVU's PSC certificate. The certificate grants RVU authority to provide wastewater service in Franklin County. The application included the following implementation schedule and completion dates: (a) Begin Construction, September 2000; (b) End Construction, March 2001; (c) Begin Reuse or Disposal, March 2001; and (d) Operational Level Attained, August 2001. SGI Utility, LLC, enclosed a check payable to DEP in the amount of $1,000 with the permit renewal application. The purpose of the check was to cover review fees. By letter dated September 28, 2000, DEP requested additional information. On or about October 5, 2000, the professional engineer for SGI Utility, LLC, sent DEP copies of the signed and sealed cover page for the permit renewal application. DEP subsequently sent SGI Utility, LLC, a copy of a Notice of Application. The notice stated that DEP had received the permit renewal application from SGI Utility, LLC. DEP expected SGI Utility, LLC, to publish the notice in a newspaper of general circulation. For the reasons set forth below, SGI Utility, LLC, never published this notice. After SGI Utility, LLC, received the Notice of Application, Mr. Wilder wrote a letter dated October 11, 2000, to DEP. The letter states that SGI Utility, LLC, as the proposed transferee of the Permit, had filed the application to renew the Permit on behalf of RVU, the current holder of the Permit. Mr. Wilder advised DEP that PSC approval was still pending. The letter states as follows in relevant part: Technically, therefore, SGI Utility, LLC is not yet the holder of the permit, although it is acting with the approval of and as the agent for Resort Village Utility, Inc. Additionally, should the publication Notice be amended to show Resort Village Utility, Inc. and SGI Utility, LLC as the applicant? By letter dated November 2, 2000, Mr. Johnson confirmed that Mr. Wilder was authorized to act on behalf of RVU with respect to all matters relating to the renewal and transfer of the Permit, including without limitation, signing all applications, documents, certificates and publication notices. Mr. Johnson's letter also states as follows in relevant part: This letter will also confirm your statement to Gary Volenac, P.E., that the form of the Notice of Application for the renewal of the permit previously submitted by the Department to Mr. Wilder by letter dated October 11, 2000, is acceptable with the exception of substituting Resort Village Utility, Inc. for SGI Utility, Inc. On November 23, 2000, the Notice of Application was published in the Apalachicola Times. The notice stated that DEP announced receipt of an application from David E. Wilder for RVU to obtain a renewal of the Permit. In a letter dated December 1, 2000, DEP advised SGI Utility, LLC, that it had been 52 days since SGI Utility, LLC, had been notified of deficiencies in the Permit renewal application. DEP reminded SGI Utility, LLC, that failure to supply the requested information might result in permit denial. Petitioner wrote DEP a letter dated December 4, 2000. Petitioner was concerned that the newspaper announcement named RVU as the applicant for renewal of the Permit instead of SGI Utility, LLC. Petitioner also noted that RVU had created a small lake on the property close to the AWT facility's largest absorption bed. Petitioner was concerned that flooding after heavy rains in the absorption bed area, together with the addition of the small lake, would present a threat of pollution to Apalachicola Bay. By letter dated December 6, 2000, SGI Utility, LLC, furnished DEP with a copy of the Notice of Application that was published in the Apalachicola Times on November 23, 2000. On January 18, 2001, DEP representatives (Joe May and Dave Krieger) met with Petitioner and an employee of SGI Utility, LLC (Morris Palmer), at the site of the AWT facility. The purpose of the visit was to conduct a routine inspection in response to the Permit renewal application and to address Petitioner's concerns. At the time of the inspection, construction of the wastewater treatment plant had not commenced. Two of the absorption beds had been installed. The third absorption bed had been flagged for construction. During the meeting on January 18, 2001, Mr. May noted that there could be a concern with rainfall run-on for one of the absorption beds. Mr. May suggested the creation of a berm at the entrance to the bed along the adjacent road to prevent rainfall run-on. Mr. May concluded that implementation of the approved stormwater plan would redirect rainfall run-off from the road. Mr. May also suggested the creation of a berm for another absorption bed. A berm between dunes adjacent to that bed would prevent run-on to the bed from high tide. During the meeting, Mr. May and Petitioner discussed the impact of heavy rainfall from a tropical storm in October 1996. The storm flooded isolated areas on St. George Island, including areas in the subject development. The isolated flooding lasted for several days. However, persuasive evidence received at final hearing indicates that the 1996 storm did not cause prolonged flooding, if any, in the absorption cells. Similar concerns about flooding in the absorption cells were addressed in the original permit. The absorption cells have been designed to ensure protection to the facility in the event of a large storm. The creation of the berms recommended by Mr. May will provide additional protection from run-on resulting from heavy rainfall. After the meeting on January 18, 2001, Morris Palmer constructed all of the berms as suggested by Mr. May. During the site visit on January 18, 2001, Mr. May and Petitioner discussed the impact of a small lake or pond created by RVU in the development after issuance of the original permit. The pond is the only change to the 58-acre development that was not contemplated prior to the issuance of the original permit. The pond is more like an isolated ditch that RVU excavated below groundwater level. RVU used the sand from the ditch to elevate the ground surface in the absorption beds and for other purposes. The pond is located approximately 527 feet from the AWT plant and 478 feet from the nearest absorption bed associated with the plant. Surface water drainage, if any, from the three absorption beds is away from the pond. Persuasive evidence indicates that the pond will not interfere with the AWT facility once it begins operation. Additionally, there is no credible evidence that possible flooding in the absorption beds will cause contaminates to collect in the pond and eventually result in a discharge of pollutants to Apalachicola Bay. Petitioner presented some evidence that the pond might act as a collection point for pollution from sources such as cars, animals, and other above-ground sources. However, the greater weight of the evidence indicates that excavation of the pond will have no impact on the results of groundwater flow modeling and contaminants transport modeling introduced at the prior hearing in DOAH Case No. 95-0863. DEP appropriately referred Petitioner's other concerns about the pond to DEP's Submerged Lands and Environmental Resources Program. Neither the original permit nor the instant Permit requires an anti-degradation study. Such studies are required only in cases involving a direct discharge to surface waters. In this case, the AWT facility will not result in a surface water discharge. During the meeting on January 18, 2001, Mr. May acknowledged that ambient monitoring data showed elevated levels of hydrocarbons and nutrients. The elevated hydrocarbons may be caused by traffic on the road and at the airport located near the absorption beds. The elevated nutrient levels can only be attributed to animals. As stated above, the AWT facility is not operational; therefore, the elevated levels of hydrocarbons and nutrients are not the result of the AWT facility. On March 30, 2001, DEP issued its Notice of Intent to Issue the Permit to RVU. The Intent to Issue indicates that RVU is the applicant for an application filed by SGI Utility, LLC, and RVU. The Permit lists RVU and SGI Utility, LLC, as co- permittees. If PSC approves the transfer of RVU's certificate to SGI Utility, LLC, DEP will transfer the Permit to SGI Utility, LLC. Until then, DEP will issue the Permit in the name of both entities. The Permit sets forth requirements for continued ambient and groundwater monitoring. These requirements, like the ones in the original permit, are sufficient to provide reasonable assurances that operation of the AWT facility will comply with Chapter 62-620, Florida Administrative Code. Under cover of a letter dated May 22, 2001, Mr. Wilder provided DEP with proof that the Notice of Intent to Issue had been published in the Apalachicola Times on April 12, 2001. Mr. Wilder signed the letter as treasurer of RVU. The published notice indicates that DEP intends to issue the Permit to RVU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That DEP enter a final order granting RVU and SGI Utility, LLC, a renewal of Permit No. FLA010069-002. DONE AND ENTERED this 28th day of February, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2002. COPIES FURNISHED: Thomas H. Adams Post Office Box 791 Eastpoint, Florida 32328 Craig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 L. Lee Williams, Jr., Esquire Williams, Gautier, Gwynn & DeLoach, P.A. 2010 Delta Boulevard Post Office Box 4128 Tallahassee, Florida 32315-4128 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue 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 Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2014.
The Issue Whether Respondent John M. Williams deposited fill in waters of the state without a permit from the Department of Environmental Protection. If so, what is the appropriate corrective action and penalty?
Findings Of Fact Mr. Williams and the Cowford Subdivision Petitioner John M. Williams is a retired mechanic. In 1992, he became acquainted with the Cowford subdivision in Walton County, near Bruce, Florida. The subdivision fronts the Choctawhatchee River. Mr. Williams purchased lot 29 of the subdivision. Three or four years later, he bought lot 30. All told, Mr. Williams paid approximately $47,000 for the lots, an electric power line and an "above-ground" septic tank. The purchase price of the lots was $38,000. Running an electric line and installation of an electric light pole cost about $4,000. Mr. Williams paid about $5,000 for the septic tank and its installation. Mr. Williams' ultimate goal in purchasing the lots and adding the improvements was to build a house on the property for use in his retirement. Attempt to Obtain the Necessary Permits The septic tank was not purchased by Mr. Williams until after he had obtained a permit for its construction. At the county offices where he went to obtain the necessary permit, he was "sent over to the power company." (Tr. 216). At hearing, he described what happened there: I paid my money to get my power and they -- well, they informed me . . . once I got my power on I had 6 months to get my septic tank in the ground or they would turn my lights off. So here I had a $3,500 light pole put up and I couldn't very well see this thing going down. So, I went ahead to the Health Department. (Id.) Mr. Williams' testimony is supported by a Walton County Environmental Health Notice dated March 8, 1999, that states, "The Walton County Building Department will not be issuing approval for power for any residence until final approval of the septic system is obtained from the Walton County Environmental Health Office." P7, the first page after Page 3 of 3, marked in the upper right hand corner as PAGE 10. At the Health Department, on April 12, 1999, Mr. Williams applied for an "Onsite Sewage Treatment and Disposal System" permit on a form bearing the following heading: STATE OF FLORIDA DEPARTMENT OF HEALTH ONSITE SEWAGE DISPOSAL SYSTEM APPLICATION FOR CONSTRUCTION PERMIT Authority; Chapter 381, FS & Chapter 10D-6, FAC P7, page 1 of 3. According to the form, he paid the $200 fee for the permit on April 29, 1999. The payment was made within a month or so after the installation of the power line. An attachment to the "Walton County Environmental Health Onsite Sewage Treatment and Disposal System Application," made out by Mr. Williams on April 12, 1999, contains the following warning: OTHER AGENCY PERMITS: As the owner or agent applying for an OSTDS permit it is my responsibility to determine if the proposed development is in compliance with the zoning requirements of Walton County. I further assume responsibility to obtain any applicable permits from other State and Local Government Agencies. P15, page 2. (emphasis supplied) (See also P7, the second page after Page 3 of 3, marked in the upper right hand corner as PAGE 11). On May 5, 1999, about three weeks after Mr. Williams submitted the construction permit application, the site where the septic tank would be installed was evaluated by an EH Specialist, an inspector. On the same day, an Onsite Sewage Treatment and Disposal System Construction Permit was issued for an "above-ground" 900-gallon septic tank. Installation With county personnel present and under county supervision, the septic tank was installed on a ridge on Mr. Williams property about 17 feet above mean sea level. Fill dirt was brought onto the site and placed on top of the tank to create a septic tank mound. No dredging of the property was done in connection with the installation. Chance Discovery After a complaint was registered with DEP about dredge and fill activity on one of the lots near Mr. Williams, Gary Woodiwiss, then an environmental specialist in the Department assigned to conduct inspections in Walton and Holmes Counties, visited the Cowford subdivision in July 2000. During the visit, Mr. Woodiwiss noticed the septic tank mound on Mr. Williams' property and that the mound, in part, consisted of fill dirt. Being of the opinion that the both the fill dirt and the septic tank system constituted "fill" and that the fill may have been deposited in jurisdictional wetlands, that is, "waters of the state," Mr. Woodiwiss consulted with DEP personnel about the status of the site and DEP jurisdiction. Ultimately, DEP determined that the site of the septic tank mound, within the flood plain of the Choctowhatchee River, was jurisdictional wetlands. The Department took action. DEP Action On November 16, 2000, Mr. Woodiwiss issued a memorandum to the DEP file with regard to "John Williams. Unauthorized Fill in Flood Plain." The memo states: Site is located next to Charles Riley who is the subject of Department action for filling jurisdictional wetlands. Williams was erroneously given a permit by Walton County health Dept. to install a septic system in 1999, which he subsequently installed. I visited the site with the administrator for the septic tanks program in Walton and she indicated that they would pay for the installation of a new system on a new lot for Mr. Williams. I recommend that the removal of the system and relocation of the inhabitants of the lot to an area outside of the immediate flood plain. P6. (emphasis supplied) Five days later, on November 21, 2002, a warning letter was generated by Mr. Woodiwiss under the signature of Bobby A. Cooley, Director of District Management for DEP. The letter advised Mr. Williams as follows: Recent Department survey data established at your property has determined that your entire lot is below the mean annual flood line of the Choctawhatchee River and is subject to dredge and fill jurisdiction of the Department. Any construction on the property including placement of a mobile home, septic tank and drainfield or other structures must first receive a dredge and fill permit from the Department. Preliminary assessment of your proposed development of the property indicates that you may not meet the public interest criteria of Chapters 403 and 373 Florida Statutes for qualifying for a permit. R5. By this letter the Department informed Mr. Williams both that he was in violation of the law by not having secured a permit for the filling of the site and warned that, on the basis of a preliminary assessment, it was not likely that he would be eligible for an after-the-fact permit. The assessment of whether the site was eligible for a permit was re-stated in writing again, but with added certainty in a Compliance Assessment Form (the Form) prepared by DEP personnel. In Section V. of the form, there appears, together with the signature of the "Section Permit Processor and a date of "11/09/2000", the following: Project is not permittable due to type of wetland system being impacted and project must not be "Contrary to the Public Interest". The project could affect the public health, safety and welfare and property of others. The project is of a permanent nature. P13. Although the permit processor entered her assessment on November 9, 2000, and other sections of the form were entered on November 1, 2000, by Mr. Woodiwiss, the Compliance Assessment Form bears a final date of February 1, 2001. The Form shows the "Event Chronology" that led to the issuance of the NOV. The chronology, consistent with the testimony at hearing, reveals the following: 25 Jul.00. Complaint inspection for fill in wetlands on adjacent lot. Found isolated fill areas in a slough and adjacent to an apparent upland area. Vegetation is 100% jurisdictional but soil is composed of alluvial deposits in ridge like configurations, one of which the respondent wished to live on. Solicited the jurisdictional team for a district assist in determining jurisdiction. 21 Aug.00. District assist. Hydrologic indicators and vegetation present in sufficient quantities to establish jurisdiction. John Tobe PhD. Requested that the mean annual flood be established on the site in order to augment his determination. October 11, 2000. District assist by Bureau of Survey and mapping and the establishment of a survey line of the 2.33 year (16.42 feet above MSL) mean annual flood elevation on the adjacent violation site. The whole site is clearly under the MAF, which extends approximately 200 meters up grade towards SR 20. The elevation of the MAF is consistent with hydrological indicators (porella pinnatta) that indicate such a flood elevation, as reported in previous studies. November 7, 2000. Met with Crystal Steele and Mike Curry of Walton County DOH to establish why Mr. Williams has a septic tank permit. They indicated that the permit was issued in error and that they would require the system to be moved. Ms. Steele stated that the County would pay for Mr. Williams to have a new system installed on another site because of the oversight. There are currently two moveable vehicles on the site, one of which is connected to the system, the other has a contained service for sewage. November 21, 2000. WLI [presumably Warning Letter Issued] November 27, 2000. Call to Mr. Williams. He wants to get money back or swap property for higher. I advised him to approach the owner Mr. Martin and make his situation known. January 22, 2000. Mr. Williams has refused to remove the fill and requests an NOV. P13, (emphasis supplied) MAF and Wetland Delineation There was considerable testimony introduced at hearing about establishment of the mean annual flood ("MAF") line for the purpose, among others, of its relationship to the elevation of the septic tank mound. The issue stemmed, no doubt, from Dr. Tobe's request that MAF be established in order to "augment his determination" with regard to DEP jurisdiction based on employment of the methodology in DEP's wetland delineation rule, see paragraph 13, above. Resolution of the issue is not necessary to augment the determination that all of lots 29 and 30 of the Cowford subdivision are located in wetlands that constitute "waters of the state." That the septic tank and the fill dirt were deposited on wetlands under the jurisdiction of DEP was clearly established by Dr. Tobe in his testimony at trial and the evidence in support of it. Petitioner concedes as much in his Proposed Final Order. Environmental Harm and Human Health Exposure Wetlands whose surface area is covered by the septic tank mound have been filled. The filling has caused environmental damage. An assessment of the damage was not offered at hearing but it appears from this record that the damage is minimal. During the time the septic tank has been on Mr. Williams' property, it has never been below the flood waters of the Choctawhatchee River and therefore has not yet caused direct hazard to human health. Corrective Action and Penalty It will be expensive to remove the septic tank; the expense will be more than the cost of installation. Petitioner fears, moreover, that it will render his property worthless. There is no evidence that Petitioner's violation of Department permitting requirements was willful. He has no history of violations previous to this one. Options to continued retention of a septic system through use of a portable wheeled waste remover or use of an upland drain field on another property are either not viable or so problematic as to be impractical. DEP Modification of its Position At the outset of the hearing, DEP announced that it no longer intended to seek civil penalties of $1,500 as it had intended when the NOV was issued. All that is sought by DEP by way of corrective action or penalty is removal of the septic tank and monetary reimbursement for the cost of the investigation of $250 (see Tr. 9, lls. 17-25, and Tr. 10, lls. 1-5.)
Findings Of Fact At all times pertinent to the issues herein, Respondent, Cargill, a Delaware corporation authorized to do business in Florida which owned and operated a phosphate mine near Fort Meade, located in Polk County Florida. Petitioner, Gloria Elder, owns residential property adjoining the Fort Meade Mine on which she maintains an individual water well for domestic and other purposes. The Respondent, District, has the responsibility for regulating the consumption and conservation of ground and surface water within its jurisdictional limits, including the well in question. For a period prior to December, 1990, Cargill had been operating under consumptive use permit No. 202297.04, issued by the District, which provided for average daily withdrawals of 12.0 MGD from wells on its property. In addition to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit and surficial aquifer dewatering activities which did not have to be reflected in the permit but which were lawful uses. In December, 1990, Cargill submitted its application to renew the existing water use permit with a modification including the 3.3 MGD previously being used but not officially permitted. No additional water would be drawn from the permitted wells as the newly applied for 15.3 MGD was the total of the 12 MGD and 3.3 MGD previously permitted and lawfully used. After reviewing the additional information requested of Cargill pertaining to this application, the District published its Notice of Proposed Agency Action for approval of the permit. The proposed permit authorizes withdrawal of the amount requested in the application, 15.3 MGD, the exact same amount actually withdrawn under the prior permit. As a part of the proposed permit the District imposed two special conditions. These conditions, 12 and 13, require Cargill to conduct its dewatering activities no closer than 1,500 feet to any property boundary, wetlands, or water body that will not be mined or, in the alternative, to mitigate pursuant to conditions 12 and 13 any activities conducted within the 1,500 foot setback. There are no reasonable alternatives to Cargill's request. The mining process in use here utilizes a water wash of gravel-size phosphate ore particles out of accompanying sand and clay. The water used for this purpose is recycled and returned to the washer for reuse. The resulting phosphate ore mix, matrix, is transported with water in slurry form to the refining plant. This system in the standard for phosphate mining in the United States. Once at the plant, the slurry is passed through an amine flotation process where the sand and phosphates are separated. This process requires clean water with a constant Ph balance and temperature which can be retrieved only from deep wells. Even though the permit applied for here calls for an average daily withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD from deep wells. This is a relatively standard figure within the industry. Approximately 92 percent of the water used at the site in issue is recycled. However, recycled water is not an acceptable substitute for deep well water because it contains matters which interfere with the ability of the chemical reagents utilized in the process to react with the phosphate rock. Therefore, the quantity sought is necessary and will support a reasonable, complete mining operation at the site. The Cargill operation is accompanied by a strenuous reclamation operation. Land previously mined near the Petitioner's property has been reclaimed, contoured, re-grassed and re-vegetated. This project was completed in 1990. No evidence was introduced showing that Cargill's operation had any adverse effect on the Elders' well. Water samples were taken from that well at the Petitioner's request in May, 1991 in conjunction with the investigation into a previous, unrelated complaint. These samples were submitted to an independent laboratory for analysis which clearly demonstrated that the minerals and other compounds in the water from the Petitioner's well were in amounts well below the detection level for each. Only the iron level appeared elevated, and this might be the result of deterioration of the 18 year old black iron pipe casing in the well. Another possible explanation is the fact that iron is a common compound in that part of the state. In any case, the installation of a water softener would remove the iron, and there is no indication the water would have any unacceptable ecological or environmental impacts in the area either on or off the site. No other residents in the area have complained of water quality problems. Petitioner claims not only that Cargill's operation would demean her water quality but also that its withdrawal will cause a draw down in the water level in her well. This second matter was tested by the District using the McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within the groundwater community. The model was applied to the surficial, intermediate, and upper Floridan aquifers and indicated the draw down at the property boundary would be less than one foot in the surficial aquifer and less than four feet in the intermediate aquifer. The model also showed the draw down at the Petitioner's well would be less than three feet, which is well within the five foot criteria for issuance of a consumptive use permit under the appropriate District rules. This evidence was not contradicted by any evidence of record by Petitioner. All indications are that the water use proposed is both reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that WUP Permit No. 202297.05 be renewed as modified to reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain with the Hearing Officer for the limited purpose of evaluating the propriety of an assessment of attorney's fees and costs against the Petitioner and the amount thereof. RECOMMENDED this 29th day of April, 1993, 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 April, 1993. COPIES FURNISHED: Joseph N. Baron, Esquire 3375-A U.S. Highway 98 South Lakeland, Florida 33803 Rory C. Ryan, Esquire 200 South Orange Avenue Suite 2600 Post office Box 1526 Orlando, Florida 32801 Martin D. Hernandez, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Bay North Corporation should be issued a permit to construct a domestic wastewater treatment and disposal system at Camp Weed, Franklin County, Florida, pursuant to Chapter 403, Florida Statutes.
Findings Of Fact On February 27, 1978, Lomax Smith, a builder and developer in Tallahassee, Florida, entered into an agreement with the Protestant Episcopal Church in the Diocese of Florida to purchase some 42 acres of real property and the improvements thereon known as "Camp Weed" which is located in Franklin County, Florida. The purchase price of the property was $725,000, with an earnest money deposit of $20,000, and closing of the transaction to be on or before July 1, 1978. At the time of purchase, eight dormitory and several accessory buildings were located on the property which utilized septic tanks for sewage disposal. An existing deep well is in the northwest portion of the property for a water supply. Smith proposed to develop the property by the sale of lots, remodel some of the existing buildings, and construct new housing units. He employed the engineering firm of Broward Davis and Associates, Inc., Tallahassee, Florida, to prepare the necessary design plans and a state environmental permit application for a proposed domestic wastewater treatment plant to be located on the site. (Testimony of L. Smith, N. Smith, Exhibits 12, 13) On September 6, 1978, Smith filed an application with Respondent Department of Environmental Regulation (DER) for a permit to construct the sewage treatment plant (STP) at Camp Weed. He signed the application as owner of the property although he had not closed the purchase transaction nor acquired legal title at that time. The application and supporting plans were reviewed in the Northwest District Office of the Department of Environmental Regulation after site investigation, and it was determined that construction of the facility would be in accordance with applicable laws and regulations. A construction permit was issued to Smith for the STP on October 10, 1978, subject to certain specified conditions attached to the permit. Notification of the permit issuance was not preceded by a notice of intent to grant the permit, nor were any third parties advised of its issuance. Petitioners St. Teresa Dock Association, Inc. (then St. Teresa Dock Association) and H.S. Oven first learned of the permit issuance when their counsel was informed by Smith's counsel on November 3, 1978, that the permit had been issued. Petitioners thereafter on November 17 filed a petition for hearing with DER. (Testimony of L. Smith, Huff, Exhibits 1, 4-5, 8) Camp Weed is bounded on the north by U.S. Highway 98 and on the south by the Gulf of Mexico. The planned site for the STP is in the northeast corner of the tract which is some twelve feet above mean sea level and approximately 950 feet from the shoreline. The elevation of the property on the northwestern side is about 24 feet and is five feet in the middle. The land slopes generally toward the middle area and drains in a southerly direction to the gulf. The subdivision of St. Teresa where Petitioners' members own summer homes is located immediately west of Camp Weed. The members of the St. Teresa Dock Association, Inc., and Petitioner Hamilton S. Oven use the beach and gulf waters for boating, fishing, and other recreational purposes. About a dozen shallow wells in the St. Teresa subdivision provide drinking water for the residents. They are located over 1700 feet southwest from the site of the proposed STP. There are two ponds north of the St. Teresa area adjacent to U.S. Highway 98. An artesian well is located in the gulf about 25 feet south of the Camp Weed property. (Testimony of Huff, N. Smith, Oven, Sensabaugh, Exhibits 2,7, 9-11, 22, 24) The proposed plant is designed to provide sewage treatment for 132 housing units containing an estimated population of 3 persons per unit. A gravity flow collection system to a pumping station will produce a peak influent rate of 29,700 gallons per day with an estimated biological oxygen demand (BOD) loading of 49.6 pounds per day. A basket strainer on the influent line will remove trash. Plant operation will involve the use of aeration tanks, clarifier, chlorination, sand filter and clear well for discharge to a percolation pond. A polishing pond was originally planned, but was deleted at the suggestion of the DER because it performs the same function as the proposed sand filter. Two percolation ponds for alternate use will be construed so that the pond bottom is twelve feet above sea level. A soil test revealed that a sand layer extends under the shallow surface top soil to a depth of approximately 10 feet before reaching the shallow ground water table and that the effluent will percolate through the sand at the rate of one inch per minute. A five foot soil boring by DER failed to encounter ground water at that level and show that rate of percolation through the sand would be acceptable. The ground water table is subject to an unknown variance indepth during the wet and dry seasons of the year depending on the amount of rainfall. Although tide fluctuations may also have some effect on depth of the ground water table, the tide most likely will be of minimum influence due to the distance of the plant site from the gulf. Percolation of at least three feet through sand before reaching ground water is sufficient to meet DER policy requirements. (Testimony of Huff, N. Smith, Bishop, Exhibits 1, 3, 16-17). Based on the design of the STP, it is predicted by applicant's design engineer that there will be at least 90 percent removal of pollutants after chlorination and prior to passage of the effluent through the sand filter. The engineer predicts that after such filtration, there will be approximately 95 percent removal prior to percolation and that the effluent will then be pure enough to use as drinking water. Further purification will take place during the percolation process. The DER District Supervisor of Domestic Wastewater Permitting, who also is a professional engineer, substantially agrees with those predictions. Actual results of the treatment process can be determined, however, only after tests from monitoring wells are made during actual trial operations of the plant. It is further agreed by those experts that the average chlorine residual content in the effluent will be 0.5 parts per million. The DER supervisor therefore is of the opinion that, if the STP is properly operated, the processed effluent will not degrade ground waters, not adversely affect the wells in the St. Teresa Community or the waters of the gulf. After percolation, there is further dilution and ultimately the ground water which reaches the gulf in eight to ten days will be in a purer form than prior to introduction of the effluent. Although a twenty-year storm criterion was applied in the design of the percolation ponds, a catastrophic storm such as a hurricane was not taken into consideration since it would not be economically feasible to design for such an effect and, in any event, super dilution caused by such a storm would negate the possibility of water quality degradation. (Testimony of Huff, N. Smith, Exhibit 1) The buildup of sludge in the plant's holding tank will require removal about once a year when the plant is in full operation. The applicant will employ a certified individual to operate the plant and to remove sludge periodically to an appropriate place for disposal in an authorized manner. DER regards sludge disposal to be a matter for determination at the time application is made for an operating permit. (Testimony of Huff, L. Smith, McNeill, N. Smith, Exhibit 1) The applicant estimates that the construction of the plant and collection system will cost approximately $1,000 per housing unit for a total of $132,000. It is planned to recover this cost on the sale of lots. A condition of such purchases will be that the sewage system and treatment plant will be operated by a home owners association which is to be activated in the near future. Maintenance cost of the sewage plant will be shared by the individual members. Approximately twenty or twenty-five members are required for economical operation of the plant. (Testimony of N. Smith, L. Smith) The county zoning classification for the Camp Weed area is currently the subject of litigation by the applicant in the Franklin County Circuit Court and the result of that litigation as to permitted density of housing will determine the amount of units to be constructed by the applicant. In any event, if the applicant does not secure a county building permit, any DER construction permit would expire at the termination of the time granted therefor. (Testimony of L. Smith, Huff, Exhibit 24) At the time Intervenor Lomax Smith signed the permit application, Bay North Corporation had not been formed. It was incorporated in November, 1978, in order that Smith could obtain financing to complete the property purchase. The transaction was closed November 6, 1978, and a warranty deed to the property was issued to Bay North Corporation by the Episcopal Church in the Diocese of Florida, Inc. The deed was recorded in the public records of Franklin County on November 7, 1978. Lomax Smith is the president and principal stockholder of Bay North Corporation. Promissory notes secured by mortgages to the Southern Bank of Tallahassee and the Episcopal Diocese of Florida in the amounts of $350,000 and $362,500 respectively, were executed by Bay North Corporation on the same date. Pursuant to a request to DER from Lomax Smith on May 15, 1979, the Northwest District DER Office, on June 29, 1979, purported to transfer the permit to Bay North Corporation and extend the expiration date to September 30, 1980. (Testimony of L. Smith, Huff, Exhibits 6, 14-15, 21) The construction permit issued in October, 1978, was subject to standard and special conditions, including the requirement that the permit holder comply with county and municipal regulations prior to construction. They provided that monthly reports be furnished to the DER prior to issuance of an operation permit setting forth wastewater characteristics during a trial period of plant operation. They also required that the facility meet the treatment requirements contained in Chapter 17-3, F.A.C., including a 90 percent reduction in BOD and suspended solids based on concentration of the influent entering the plant. The conditions further provide that at the time of application for an operation permit, it must be shown that a certified operator under Chapter 17- 16, F.A.C., is retained, together with a copy of any contract for contract operation of the facility. Additionally, the conditions require that two monitoring wells be established upstream and downstream of the ponds and that quarterly ground water samples be analyzed and reported to DER. A further condition provides that a three-foot buffer zone must be maintained between the bottom of the percolation ponds and the maximum elevation of the ground water. (Exhibit 8)
Recommendation That the Department of Environmental Regulation issue the requested permit to Bay North Corporation, subject to the conditions attached to the permit issued on October 10, 1978. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of November, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: George E. Lewis, II, Esq. 316 East Park Avenue Tallahassee, FL 32303 William L. Hyde, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Ben H. Wilkinson, Esq. Pennington, Wilkinson, Gary and Dunlap Post Office Box 3875 Tallahassee, FL 32303 Alfred O. Shuler, Esq. Post Office Box 850 Apalachicola, FL 32320
