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
Findings Of Fact The applicant, Island Village Condominiums, prepared and submitted to the Department of Environmental Regulation a completed application for construction of its extended aeration sewage treatment plant. The relative distance and direction from the proposed treatment plant to major bodies of surrounding surface water are depicted in an aerial photograph which accompanied the application. The elevation of the surrounding waters in all directions is 39 feet. When the treatment plant is operated in compliance with its design features, the effluent from the plant will exceed the Department's standards for effluent discharge. The zone of discharge will be confined to the owners' property. Surface waters will not be involved in discharge. There will be no adverse impact upon ground waters. The treatment plant would not create a hazzard to the deep water wells of Point O' Woods Utilities, Inc. The treatment plant, as designed, meets or exceeds the engineering standards established by the Department. The likelihood of geologic subsurface failure is remote. Ground water levels are included on the schematic plan which accompanied the application to the Department. The tops of the holding ponds are above the 100-year flood level. The treatment plant will produce no noticeable odor. No exterior lights are to be used with the plant. The noise from the plant's operation would not travel more than 200 feet. The holding ponds would be more than 120 feet from the nearest surface water. The estimate of the cost is accurate at $98,000. Martin I. Gunn, Inc., is the developer of the property, which is also owned by the corporation, Island Village Condominiums, also known as Island Village of Inverness. The treatment plant will become the property of the home owners association and will be operated by the association from maintenance fees paid by the home owners. Martin I. Gunn/Island Village is not a public utility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the permit for the construction and operation of an extended aeration sewage treatment plant be issued to Island Village Condominiums subject to the general and specific conditions stated in the Department's original notice. DONE and ORDERED this 19th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1982. COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer. B Winter Park, Florida 32790 Donald F. Perrin, Esquire New Bank of Inverness Building Highway 41, South Post Office Box 1533 Inverness, Florida 32650 William W. Deane, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria J. Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact FEC is the owner and developer of the project at issue in this proceeding, an industrial park to be located on 322.1 acres in Section 32, in the Town of Medley, in northwestern Dade County, Florida. Not at issue in this proceeding is the related but separate project planned by FEC for construction in Section 6, an unincorporated area of Dade County, lying immediately southwest of the property at issue. FEC proposes 5,193,570 gross feet of floor space for the project, to be constructed in six phases. Seventy-four percent of the floor area is to be completed or under construction within the first five years of the park's operation. Expected uses of the park, when completed, are expected to fall into four general categories: Distribution, comprising 792,516 square feet; wholesale trade, 2,509,018 square feet; manufacturing, 873,520 square feet; and offices and services of 1,017,515 square feet. There is no specification of what types of industries will be located in the project, or what types of chemicals or materials each may handle. FEC has applied for and received various approvals of the proposed industrial park. On June 6, 1983, the South Florida Regional Planning Council ("RPC") recommended approval of the FEC proposal, with conditions. On August 1, 1983, the town council of Medley adopted Resolution No. C-426, which approved and issued a development order for a development of regional impact for the project. Before the issuance of the Medley development order, Metropolitan Dade County adopted its own development order, Resolution No. Z-114-83, on June 23, 1983, approving the development proposed for Section 6 in the unincorporated area of the county. In September, 1983, DCA appealed the Medley development order. On October 3, 1983, the RPC voted not to appeal that order. The proposed project is located in an industrialized and largely unsewered area. The FEC property surrounds or abuts numerous out parcels within Section No. 32, which are served only by septic tank disposal systems, unlike the sewer system planned for the FEC development. The Northwest Wellfield is located about three miles to the southwest of the proposed FEC industrial park at its closest point to Section 32, and about four miles from the furtherest reach of the park. The wells of the Northwest Wellfield form a line about two miles west of the Florida Turnpike, and four miles southwest of Medley. The wellfield presently comprises 15 wells, each 42 inches in diameter, fully penetrating the Biscayne Aquifer to a depth of about 70 feet. The county has equipped each well with a two-speed pump capable of producing ten million gallons per day (MGD) at low speed, and about 15 MGD at high speed. Current maximum capacity of the wellfield is about 225 MGD. The county holds a valid consumptive use permit from the South Florida Water Management District authorizing an average pumpage of 50 MGD. The county has applied for a permit to increase the pumpage to 180 MGD. The county is presently pumping the wellfield at the rate of 140 MGD to offset the reduction in pumpage from the Hialeah and Miami Springs wellfields as a consequence of the discovery of contamination in those fields. The Hialeah and Miami Springs wellfields are currently pumping at a rate varying from three to ten MGD. The Northwest Wellfield, completed in 1983, at a cost to the public of $38,000,000, is located within the Biscayne Aquifer, which underlies all of southeastern Florida, including all of Dade County, from north of Boca Raton to the northwest area of Monroe County. The Biscayne Aquifer is a highly permeable, unconfined shallow aquifer composed of limestone and sandstone. The aquifer is a regional resource, serving as a sole source of potable water for the approximately 1.8 million residents of Dade County. Because of its cavernous nature, the aquifer has high vertical and horizontal permeabilities, permitting both rapid infiltration of rainfall as recharge to the aquifer, and rapid drainage through canals. Recharge to the aquifer is primarily from rainfall. In the latter part of the dry season, however, the main recharge to the aquifer results from infiltration from canals fed from water conservation areas. Net recharge from rainfall to the aquifer ranges from 8 to 20 inches per year. Because of wide fluctuations in annual rainfall amounts in South Florida, recharge from canals to the wellfield is important. The South Florida Water Management District operates an intricate system of canals, levees, control structures, and large water conservation areas for flood control, water conservation, and salinity control. These systems significantly affect water levels in the Biscayne Aquifer, including the area around the Northwest Wellfield. The levees impound fresh water and prevent overland sheet flow from the Everglades eastward through agricultural and urban areas. The complex system of interconnected canals provides necessary drains for the urban coastal areas in the wet season and transfers water from the conservation areas during the dry season to replenish water in the aquifer removed by various municipal and county wellfields. Water levels in the canals are controlled by opening or closing control structures during the wet season to prevent flooding in urban agricultural areas, and leaving the structures closed during the dry season to conserve fresh water and limit saltwater intrusion. Canal levels usually reach their seasonal lows in May. In the vicinity of the Northwest Wellfield, the system of levees and canals provides a substantial amount of recharge to the wellfield. The canal most significantly affecting water levels in the Northwest Wellfield is the Snapper Creek Canal, a borrow canal running immediately east of and parallel to the Turnpike, about two miles east of the wellfield. The Snapper Creek Canal borders the western line of the FEC property in Section No. 6 and lies about one mile west of Section No. 32. The terms "cone of influence" or "cone of depression" are terms applied to the area around a well from which the well draws water. Before a well commences pumping, ground water fills the pores and fractures in underground rock formations to a water level at which the fluid pressure of the ground water equals the atmospheric pressure exerted from above. Pumping the well reduces the fluid pressure of the ground water in the vicinity of the well, and results in a cone of depression or influence. Viewed from above, a drawing of a hydrologic cone of depression appears roughly circular, centered on the pumping well. A cross section of the cone would show an inverted shallow cone in the upper aquifer, whose lowest point coincides with the intersection of the cone where it enters the well. Pumping the well creates a down gradient for water below the area of the cone to flow toward the well. A "hydrologic cone of influence" is that point marking the outer bounds of the influence of a pumping well at a given point in time. A "regulatory cone of influence" arbitrarily fixes the location of the cone as a zone in which activity is regulated. The extent of a regulatory cone depends upon policy decisions taking into account the margin of safety deemed necessary for the protection of a well, regardless of the actual location of the hydrologic cone and technology available to protect ground water. The generally accepted value adapted by most regulatory agencies for the "regulated cone of influence" of a wellfield is the 0.25 foot draw-down line. This is so because it is also generally accepted that, with proper engineering practices and proper annual inspections, potential contaminants be generated and stored within this regulated cone of influence without inordinate risks of contamination to the underlying aquifer. The extent of a hydrologic cone of influence varies continuously, and is dependent upon the characteristics of the involved aquifer, such as its ability to transmit and to retain water, as well as the pattern and the amount of rainfall in the area, and the effect of nearby streams or canals. In addition, the rate of pumping of a well controls the extent of the cone of influence under any given set of aquifer conditions. Dade County regulates land uses in the area of the Northwest Well field according to whether property falls within the projected cone of influence of the field. In March, 1981, Dade County adopted an ordinance prohibiting the handling, use, transportation, disposal, storage, discharge, or the generation of hazardous materials in an area west of the Florida Turnpike, defined as being within 210 days travel time for a hypothetical particle of contamination to the Northwest Wellfield. That initial protective zone lay entirely to the west of the Turnpike, and included neither Section 6 nor Section 32. As a result of further study and computer modeling, the county subsequently adopted Ordinance No. 83-82 on September 20, 1983, amending the map of the cone of influence for the Northwest Wellfield, and adopting new regulations requiring the use of sewers instead of septic tanks in industrial areas. The amended map projected a cone of influence that greatly expanded the protective zone around the wellfield, and included both Section 6 and Section 32. The regulatory cone of influence selected by Dade County does not conform to the hydrological cone of influence, but excepts instead the area around the well depressed by 0.25 feet or more from the original unpumped surface. The county based its modeling of the regulatory line on an assumed pumpage of 150 MGD for the Northwest Wellfield, which is approximately equal to its present pumpage, and 75 MGD from the Miami Springs, Hialeah, and Preston wellfields, which is approximately ten times the current combined rate of pumpage for those fields. In addition, in running its computer model, the county conservatively assumed the highly unlikely condition for the aquifer--a 210-day period during which the aquifer would receive no recharge from rainfall. This "worst case" condition has never occurred during this century. In addition to this assumption, the county's computer modeling also ignored the substantial contraction of the cone during every wet season because of rainfall recharge, and omitted consideration of recharge to the wellfield from canal systems in the area. Within the line defined by its regulated cone of influence, Dade County currently bans all use, handling, generation, and transportation of hazardous materials. The cone of influence currently contained in the county's ordinances includes all of Section 32, including FEC's proposed project. Dade County Ordinance No. 83-82 is considered an interim regulation, intended to remain in force while Dade County continues to gather information concerning the aquifer in the vicinity of the Northwest Wellfield under pumping conditions. Since the enactment of the wellfield protection ordinance, Dade County has initiated a study to formulate a more detailed management plan for the wellfield. Dade County is conducting the study and generally implementing its environmental regulation and wellfield protection through its Department of Environmental Resources Management (DERM). DERM's powers extend into municipal areas, such as Medley, as well as throughout the unincorporated area of Dade County. The agency has a budget in excess of $5 million annually. Both within the municipalities and throughout the unincorporated areas of Dade County, DERM reviews building permit applications of all industries expected to potentially discharge chemicals into sewer systems. DERM requires all such industries to obtain an annual permit under Section 24-35.1 of the Dade County Code, and to install pretreatment facilities to ensure that no unsafe chemicals are discharged directly into sewers. In addition, DERM requires that all users or generators of hazardous materials throughout Dade County follow best management practices, including ground water monitoring, when appropriate. A special section of the agency focuses on the enforcement of hazardous materials regulation. In addition, Dade County has initiated a hazardous waste cleanup fund, a liquid waste transporter's permit ordinance, and regulation for underground storage facilities for hazardous materials. Further, Dade County has adopted Resolution No. R-114-84, which incorporates a non-exclusive list of numerous hazardous materials subject to regulation under the wellfield protection ordinance and other regulations. The more credible evidence of record in this cause establishes that even should Dade County remove the current ban on hazardous materials in Section 32, the proposed industrial park, as restricted by the Medley development order, would pose no significant threat of contamination to the Northwest Wellfield. As modeled under realistically conservative assumptions, including pumpage rated far exceeding the presently permitted legal rate of 50 MGD, the Northwest Wellfield hydrological cone of influence would reach into Section 32 for no more than one or two months per year, at the end of the dry season. For most of the year, the Snapper Creek Canal will act as a natural recharge boundary for the Northwest Wellfield. The canal would normally carry sufficient water northward from the Tamiami Canal to maintain a pressure head in the canal, driving water into the aquifer on both sides, replenishing the water drawn by the wellfield in the area west to the canal, and holding the cone of influence at the west side of the canal. On the east side of the canal, ground water would resume its natural flow to the southeast or east, unaffected by pumping in the Northwest Wellfield. During the dry season, the recharge mound in the Snapper Creek Canal would diminish, and the cone of influence could gradually expand, possibly recharging Section 32 for a month or two at the end of the dry season. As soon as the rainy season commenced again, however, the canal would fill up rapidly and resume its function as a recharge boundary. The more credible evidence establishes that it is highly unlikely that ground water contaminants originating from Section 32 would ever reach the Northwest Wellfield. Ground water moves only a few feet or even inches per day in the Biscayne Aquifer. Because Section 32 is located three to four miles from the Northwest Wellfield, the gradient to the wells in the cone of influence in Section 32 is extremely slack. In the driest of droughts, a hypothetical plume of contaminants beneath Section 32 would move only slightly towards the wellfield. At the return of the wet season, the gradient draining ground water from Section 32 eastward to the Miami Canal would be very steep and would rapidly flush any contaminants away from the wellfield and its cone of influence. The Medley development order imposes several restrictions on the development which protect the Northwest Wellfield from any threat of potential contamination from the proposed industrial park. The development order requires the removal of all exotic vegetation and the planting of native species to reduce the demand for water and the use of fertilizer, a potential contaminant; restricts irrigation in the project to the use of non-potable water from onsite lakes and wells; obligates FEC to construct, or provide $600,000 to the Dade County Fire Department for construction of, a fire station according to county specifications within the primary response district for Section 32, to improve the fire department's capability to respond quickly to any spill of hazardous materials; requires FEC to submit to the RPC, Dade County and Medley a detailed management operation plan within six months of the date of issuance of the development order; and further requires that FEC submit a hazardous material spill contingent fee and response plan to the RPC, Dade County, and Medley within one year of the date of the development order. The development order contains detailed criteria for the management/operation plan, including inspections, monitoring, and the use of best management practices designed to minimize the risk of contaminating ground water. Further, these requirements include approval of specific standards for hazardous materials accident prevention, mitigation, and response; adequate pre-treatment facilities to assure segregated retention of hazardous waste and their removal and disposal in accordance with local, state, and federal requirements; that all facilities be readily open for inspection by Medley and DERM; and appropriate storage and accurate labeling of hazardous materials. The order also requires that FEC receive review and approval of its plans by the RPC, Medley, and Dade County. The RPC will, if deemed appropriate, in the course of review, impose its customary policy of ground water monitoring for a project using or generating hazardous materials. The development order provides that whatever wellfield protection regulations Dade County might adopt after further monitoring of the Northwest Wellfield will apply to the FEC project in Section 32. The RPC compiled, and Medley adopted, in the development order, "Table 22" as a tool for determining the types of land uses that should be excluded from locating in the proposed industrial park. In the event Dade County were to remove the present ban on hazardous materials in Section 32, the Medley development order requires that every firm and industry listed in Table 22 desiring to locate in the development to apply to RPC, Dade County, and Medley for a waiver of restriction on hazardous materials, based upon the tenant's demonstration that its use of appropriate best management practices or other measures will adequately protect the environment. These applications would be reviewed on a case-by-case basis to determine the adequacy of proposed protected measures. This condition is imposed in the development order in addition to existing local, state, and federal permitting requirements. Further, Dade County also independently requires the use of best management practices, including monitoring when appropriate, by any industry using hazardous materials in Dade County. In summary, the evidence in this cause establishes that the current ban imposed by Dade County on the use, handling, generation, and transportation of hazardous materials in Section 32, when viewed in the context of the existing hydrological system in the area and the conditions imposed upon FEC in the Medley development order, combine to demonstrate the lack of a permanent ban on hazardous materials in Section 32 will pose no significant threat to the Northwest Wellfield. There is no evidence of record in this proceeding to demonstrate that the proposed project is in any way inconsistent with an existing state land development plan, any local land development regulation, or the regional planning council report.
Conclusions On October 7, 2011, an Administrative Law Judge (“ALI ”) of the Division of Administrative Hearings entered an Order Closing File and Relinquishing Jurisdiction to the Department.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9. 030()(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES, YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA11-GM-168 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this Laas of March 2012. By U.S. Mail: James E. White, Esq. Florida Bar No. 679461 WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. Attorneys for Respondent 200 E. Broward Blvd., Suite 1900 Fort Lauderdale, FL 33301 Telephone: (954) 763-4242 Telecopier: (954) 764-7770 By Filing with DOAH: The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison St., MSC 110 Tallahassee, Florida 32399-4128
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.
Findings Of Fact On or about December 28, 1987 Hy Kom filed with the Department an application for a permit to construct a .0126 MGD Advanced Waste Water Treatment Plant on Emerson Point, Snead Island in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Terra Ceia Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Tampa Bay in Manatee County. The proposed waste water treatment plant would discharge effluent into the waters of Manatee River in Manatee County. The waters of Terra Ceia Bay have been designated Outstanding Florida Waters (OFW) by the Department. On or about April 27, 1989 the Department issued a Notice of Permit Denial concerning Hy Kom's permit application. The parties stipulate the Intervenor, Manasota-88, has standing to intervene as a party Respondent and to object to the issuance of the permit. Petitioner's evidence can best be summarized by what was not submitted. First, the expert witness called to identify the application had not prepared any part of the application or verified any of the studies presented therein. Similarly Petitioner's expert on the proposed treatment plant did not testify that Petitioner was committed to using this plant, or that the construction of the plant and the operation of the plant would comply with statutory and rule requirements. The only witness called by Petitioner to testify to the effect the discharge from the proposed advanced waste water treatment plant would have on the receiving waters was also Respondent's expert; and this witness testified that the effluent discharge from this proposed plant would have an adverse effect on the receiving waters, would seriously degrade the receiving waters as a nursery habitat for both crustacea and fishes endemic to the area, and that no reasonable assurances that this would not happen were ever presented by the Petitioner. This witness further testified that no discharge into these receiving waters would be acceptable not only because of the nitrogen level (which was the most significant reason for denying the permit) but also because even a discharge of absolutely pure water would upset the salinity of the receiving waters at the critical time the receiving waters act as a marine nursery.
Recommendation It is RECOMMENDED that a Final Order be entered denying the application of Hy Kom Development Company, for a permit to construct and operate an advanced waste water treatment facility at Emerson Point, Snead Island, Manatee County, Florida. DONE and ORDERED this _15th_ day of September, 1992 in Tallahassee, Leon County, Florida. COPIES FURNISHED: JAMES W. STARNS ESQ 501 GOODLETTE RD SUITE D-100-24 NAPLES FL 33940 W DOUGLAS BEASON ESQ ASST GENERAL COUNSEL K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this _15th_ day of September, 1992. DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 THOMAS W REESE ESQ 123 EIGHTH ST N ST PETERSBURG FL 33701 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER SECRETARY DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
The Issue Whether a permit to convert previously permitted percolation ponds to a land application, reclaimed water, spray and drip irrigation system should be granted to Respondent, Destin Water Users, Inc.
Findings Of Fact The City of Destin, Florida is located on a sandy strip of land which lies between the Gulf of Mexico to the south and the Choctawhatchee Bay to the north. This strip of land generally consists of rapidly percolating soil. Importantly, the strip of land has a breakline running through it which functions similar to the Continental Divide of North America in determining the direction of flow of any water located on either side of the divide. In this case, the breakline causes water to flow either north or south depending on which side of the breakline the water is located. DWU provides water and sewer treatment to residents and businesses located in the City of Destin, Florida. In order to provide its sewer service, DWU operates a waste water treatment plant along with several wastewater percolation ponds and wastewater spray and drip irrigation systems. Sometime in 1991, DWU entered into a lease agreement with a third party in which DWU would permit the third party to construct a golf course on a thirty acre site which currently contains four of DWU's percolation ponds. The four percolation ponds, which are the subject of this proceeding are located off U.S. Highway 98 in Destin, Florida. The northern boundary of the subject site is the southern boundary of the property in which Petitioners' have an interest. After construction of the golf course, DWU plans to continue to dispose of treated wastewater at the site by using a dual irrigation system consisting of a sprinkler system for spray irrigation and a series of underground plastic pipes for slow drip irrigation. DWU desired to create a dual use for the 30 acre site in order to generate more income from the property and still be able to dispose of wastewater on the property. In order to accomplish its goal, DWU was required to obtain a permit for the planned conversion of the percolation ponds to a land application, reclaimed water, spray and drip irrigation system. Because a spray and drip irrigation system would be put into place, DWU would be required to provide additional nutrient and BOD removal before water is put on the property. DWU clearly has the capability and experience required to provide additional nutrient and BOD removal. Also because a spray and drip irrigation system would be substituted for the percolation ponds the maximum quantity of effluent to be applied to the property would be reduced to 1.58 gallons per day under the proposed permit. The location of the percolation ponds and consequently the proposed spray and drip irrigation system is a superior site for effluent disposal because of the sandy soil, high elevation relative to the property surrounding the site, and the high permeability rate of the soil. The ponds have been in existence for approximately ten years, and have operated under a permit which allows a maximum average of 1.65 million gallons of wastewater a day to be applied to the ponds' 30 acre site. Indeed, when the ponds were originally permitted approximately ten years ago all of the various factors affecting flow rates were reduced to calculations to determine the amount of effluent which could safely be placed on the percolation ponds' site to insure complete and continual compliance with Department requirements. To date, all of the effluent currently being applied to the percolation ponds meets the Department's standards when it leaves the percolation pond property and there have not been any violations of the operating permit or any other statutes, or rules for the subject percolation ponds during the history of their operation. Similarly, the design calculations for the proposed conversion to the spray and drip irrigation system on the proposed golf course show that the water quality will continue to meet the Department's standards when it leaves the property. The pond site is surrounded by eight monitoring wells. These wells measure the level of any contaminants which may seep into the groundwater and also measure any changes in groundwater levels. The monitoring wells are a requirement of the percolation ponds' permit to insure compliance, with state water quality standards and to insure that the percolation ponds are not adversely affecting any off-site property. DWU has submitted quarterly reports of the readings from these monitoring wells, as required by law, to the Department. The wells will remain in place should the property be converted to a golf course with a spray and drip irrigation wastewater disposal system. A portion of the monitoring wells which encircle the percolation ponds lie along the northern boundary of the percolation ponds, which is the southern boundary of Petitioners' property. Petitioners submitted the testimony of two lay witnesses in an attempt to establish a causal relationship between the percolation ponds and flooding in and around the percolation pond area. Petitioners' witness, Bud Sharon, testified that he saw water on property located immediately to the south of DWU's percolation ponds which he had previously owned. The water Mr. Sharon saw was a continuous stream of water running down the side of his property. The stream of water developed after the ponds had been built. However, this witness was not qualified to render any expert opinions correlating the presence of any water on his property to any activities on DWU's percolation ponds. Most importantly, the evidence showed that the ponds were not in continuous use by DWU and at times were dry while Mr. Sharon's stream was continuous. This fact alone leads to the conclusion that the stream of water Mr. Sharon testified about was caused by factors not attributable to the percolation ponds. Additionally, analysis of the water found upon this witness' property was determined to be free from any contaminants and did not pose any health risks. Finally, the evidence demonstrated that with improved storm water control throughout the general area the stream has abated. Dale Whitney was also proffered by petitioners and presented lay testimony regarding his observations of water in the vicinity of the percolation ponds. This witness testified that he saw water emanating from the berm which forms the southern boundary of the DWU percolation ponds. However, it was established during cross-examination that this witness did not know whether the DWU percolation ponds were in use at the time or when they had previously been in use. This witness also admitted under cross-examination that he was not qualified through experience, training or otherwise to opine about the source of water which he observed or whether it was in any way attributable to the percolation ponds. Additionally, the evidence showed that Mr. Whitney's observations occurred shortly after a heavy rain and during a particularly wet time of the year. In short, the water seen by Mr. Whitney more than likely was the result of storm water control in the area with rainwater percolating out of the berm. The evidence was insufficient to show that effluent from the percolation ponds was leaking through the berm. On the other hand, the empirical data from the monitoring wells surrounding the percolation ponds demonstrates that the breakline for the area is north of the percolation ponds' site and is on Petitioners' property. The groundwater at the subject site flows in a southerly direction to the Gulf of Mexico. The data from the monitoring wells also indicates that the wastewater stays in the groundwater and does not emanate to the surface and cause flooding. Similarly, there was no competent substantial evidence that the subject site caused any flooding at any time to the Petitioners' property. Indeed the historical data gathered from the percolation ponds' site demonstrates that water on that site runs away from Petitioners' property. In short, Petitioners failed to offer any plausible basis for inferring that water on the percolation ponds' site could flow uphill over the breakline and cause either flooding or raised nutrient levels on Petitioners' property. 1/ Moreover, for the past ten years during which the percolation ponds have been in existence, all effluent contaminant levels have been well within compliance with all Department rules. Moreover, Petitioners presented no substantial credible evidence, either testimonial or documentary, concerning any water sample analyses in support of their allegations regarding water borne contaminants emanating from the percolation ponds onto their property; and no substantial credible evidence in any way materially controverting the engineering information submitted by DWU in its application or the determinations made by the Department in its analyses and approval of DWU's application. Clearly, the actual performance of the percolation ponds over the past ten years establishes that the site will perform in accordance with the Department's rules should the proposed conversion be allowed. Additionally, given DWU's full compliance with all of the Department's rules relative to the performance and function of the percolation ponds over the past ten years, as well as compliance on DWU's use of its currently existing reclaimed water reuse systems and the fact that the conversion proposal meets the Department's water quality and design criteria requirements for reclaimed water use, reasonable assurances that DWU will continue to comply with all the Department's rules should the proposed conversion be allowed have been given and the permit should be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Environmental Regulation enter a final order issuing permit application number DC46-199969 to Destin Water Users, Inc. RECOMMENDED this 3rd day of August, 1992, at 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 3rd day of August, 1992.
Findings Of Fact Application No. 76-00336 is a request by the City of Plant City, Florida, for a new use from a single well at a location approximately 31 miles east of downtown Plant City. The well would be located in the Hillsborough Basin. The average annual daily withdrawal sought is 2.0 million gallons with a maximum daily withdrawal sought being 3.5 million gallons. The amount requested is consonant with the needs of the city and contains provision for some growth. The Plant City service area encompasses 8,600 acres. The sought for consumptive use will not significantly induce salt water intrusion. The consumptive use sought may interfere with existing legal uses. There are a number of private wells, perhaps 50-60, in the area. Most of these wells are in a subdivision known as Pleasant Acres. These wells will experience drawdowns of up to 4.3 feet which may cause the pump to break suction during the dry season or line pressure to drop. Further, the average drawdown at the property boundary created by the sought for consumptive use will be approximately 6.3 feet. The boundary of the well site is approximately 150 feet from the well. The well could have been located so that the average drawdown at the property boundary would not have been in excess of 5 feet. The well is already in existence, having been constructed over one year ago. The primary purpose of the well is for better fire protection and additional capacity for domestic use and growth in Plant City. The residents of Pleasant Acres are very concerned about the effect of the proposed well on their existing wells. The Southwest Florida Water Management District's staff recommends granting of the permit with the following conditions: That the City of Plant City shall install a totalizing flowmeter on the well. That the City of Plant City shall submit monthly pumpages on a quarterly basis to the following address: Chief, Technical Information Service, SWFWMD, 50560 U.S. 41 South, Brooksville, Florida. That upon completion of construction of all pumping facilities the City of Plant City will pump the permitted facility during the third week of the following May at the maximum rate of 3.5 million gallons per day for at least three days. Private well owners within a radius of mile will be notified prior to the initiation of the tests. Complaints will be handled by the city according to stipulation D. The City of Plant City shall investigate under the direction of the city engineer, all complaints by owners of private wells which are within a mile radius of the permitted facility and which relate to loss of water. Further, the city shall repair or replace at no cost to the owner, those private wells and/or the associated pumping facilities which are substantially affected by the city's with- drawals and which can be attributed to 10 feet or less of drawdown. With the exception of those matters set forth above pertaining to Subsection 16J-2.11(4)(b), F.A.C., none of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., exist, with regard to this application so as to require its denial.
Recommendation It is recommended that Application No. 76-00336, submitted by the City of Plant City, Florida, be granted in the amount of 2 million gallons per day average annual withdrawal and 3.5 million gallons per day maximum daily withdrawal, provided that the four conditions listed in paragraph 8, above, be placed upon the permit. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Salvador D. Nabong City Engineer City of Plant City P. O. Drawer C Plant City, Florida 33566 Paul Buckman, Esquire City Attorney City of Plant City City Hall Plant City, Florida 33566
Findings Of Fact Respondent/applicant, Kensington Park Utilities, Inc. (applicant), is a public utility located in Sarasota, Florida. On October 12, 1984, applicant filed an application with respondent Department of Environmental Regulation (DER); seeking approval to construct a domestic wastewater treatment and disposal system in an unincorporated area of Sarasota County Florida. 1/ More specifically, the project will be located on a thirty-five acre tract of land lying west of Tuttle Avenue and north of 27th Avenues just northeast of the City of Sarasota. It is directly east of a housing development known as Newtown Estates. A drainage ditch separates the two properties. Petitioners, Eddie Lee Rosier, Sr. and Ernest Dubose, either live in or near the Newtown subdivision. Petitioners, Alfred W. Jones and Mary James did not testify at final hearing and their interest in this matter is not of record. Petitioner, Newtown Homeowners Association, Inc., is a nonprofit corporation made up of homeowners or residents in the Newtown housing development. In this proceeding petitioners oppose the manner in which the project will be constructed as well as its location. Applicant proposes to construct a 175,000 gallons per day capacity expandable extended aeration wastewater treatment system with effluent disposal to two percolation holding ponds of 125,000 square feet each and spray irrigation of a 3.2 acre site. The 3.2 acre spray area will serve as a backup to the percolation ponds. There will be total retention of effluent onsite, and none will be discharged to the ditch which separates Newtown and Kensington's property. The estimated cost of the project is $500;000. The project is designed to serve the present population of 1,750 until regional sewage treatment becomes available, at which time this plant will be shut down or tied into the regional system. If constructed, this plant will serve the western portion of its franchise area including Newtown Estates, Windmill Villages and Rolling Green. The entire plant site will be fenced with a locked gate in accordance with a Sarasota County ordinance. Applicant is subject to the regulatory control of both DER and Sarasota County (County). The County has established a local pollution control program pursuant to Section 403.182, Florida Statutes. As such, applicant is required to obtain permitting approval from both the County and DER. In this regard, applicant's plans and specifications were reviewed by both DER and County personnel and both made on-site inspections of the property in question. All DER and County rules, regulations and standards were found to be met. Specifically, applicant has given reasonable assurances that the proposed project will not discharged emit or cause pollution in contravention of DER standards or rules. Further, the proposed groundwater discharge will not cause significant adverse effects to the designated uses of the adjacent groundwaters. This was not controverted by petitioners. Petitioners' objections fall into four broad categories. First, they challenge the location of the project, and particularly its placement on the most westerly portion of a tract of undeveloped land which lies immediately adjacent to Newtown and a recreational area. Because of this, they fear that spray from the spray irrigation site will drift onto their homes and picnic area when easterly winds prevail. However, a 150 foot setback has been established in accordance with agency rules, and "downsprays" will be used to prevent such an occurrence. Second, they are concerned that in the event of an "emergency , raw sewage containing virus and bacteria may be dumped into the drainage ditch adjacent to their property. However this concern is unfounded. If an unanticipated emergency arose, only overflow water from the percolation ponds would be discharged into the ditch, and by that time the water would be 90 percent free of contaminants. Moreover, in the event of an emergency, applicant's facility is capable, with only minor modifications, of discharging effluent to another plant approximately two miles away. Third, petitioners are concerned that the plant will emanate a noxious odor which because of petitioners' proximity, will make living conditions in the Newtown area most undesirable. They point out that a city-owned sewage plant on 12th street which is a mile away emits noxious odors that can be detected in the Newtown area. However, petitioners' own expert concedes the plant's design is the "best design" possible for eliminating odors, and only through an unplanned malfunction could an odor occur. Moreover, applicant's plant is far superior to the city's; and is designed to eliminate the type of odor that is emitted from that facility. Finally, petitioners suggest that if raw sewage is dumped into the drainage ditch, it may eventually seep into "the underground water system" and endanger the well water of persons living immediately south of the project. But since no raw sewage will be discharged, this concern is without merit. This finding is corroborated by expert testimony of witness Suttcliffe who concluded that the treatment process posed no threat to surrounding groundwater. Other contentions relating to the utility's hookup policy its potential for accidents involving neighborhood children, and the alleged diminishment of property values in the immediate area, while well intended are not within the purview of DER's regulatory scheme.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the agency issue a permit to applicant as reflected in the agency's notice of intent to issue dated March 17, 1985. DONE and ORDERED this 23rd day of July, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 23rd day of July, 1985.
Findings Of Fact B. D. Taylor, Respondent, is the owner of a wastewater treatment facility near Panama City, Florida, which serves a community of some 125-150 mobile homes at Lane Mobile Home Estates. The facility has a 24,000 gallons per day capacity to provide secondary treatment of wastewater with percolating ponds. It was first permitted in 1971 upon construction and has been in continuous operation since that time. In 1980 Respondent employed the services of a consultant to apply for a renewal of its temporary Permit to operate a wastewater treatment facility. This application stated the temporary operating permit (TOP) was needed to give Respondent time to connect to the regional wastewater treatment facility. The schedule contained in the following paragraph was submitted by Respondent at the time needed to accomplish this objective, Following inspection of the facility, a TOP was issued December 5, 1980 (Exhibit 1), and expired January 1, 1983. TOPs are issued to facilities which do not comply with the requirements for Wastewater treatment. Exhibit 1 contained a schedule of compliance to which Respondent was directed to strictly comply to stop the discharge of pollutants from the property on which the facility is located. These conditions are: Date when preliminary engineering to tie into regional will be complete and notification to DER. July 1, 1981; Date when engineering to tie into regional system will be complete and notification to DER - June 1, 1982; Date construction application will be submitted to phase out present facility - March 1, 1982; Date construction will commence - June 1, 1982; Date construction is to be complete and so certified - October 1, 1982; and Date that wastewater effluent disposal system will be certified "in compliance" to permit - January 1, 1903. None of these conditions or schedules has been met by Respondent. The regional wastewater treatment facility was completed in 1982 and Respondent could have connected to this system in the summer of 1982. This wastewater treatment facility is a potential source of pollution. The holding ponds are bordered by a ditch which is connected to Game Farm Greek, which is classified as Class III waters. The size of Game Farm Creek is such that any discharge of pollution to this body of water would reduce its classification below Class III. On several occasions in the past there have been breaks in the berm surrounding the holding ponds which allow the wastewater in the holding ponds to flow into the ditch and into Game Farm Creek. Even without a break in the berm, wastewater from these holding ponds will enter Game Farm Creek either by percolation or overflow of the holding ponds caused by the inability of the soil to absorb the effluent. On January 28, 1983, this facility was inspected and the results of the inspection were discussed with the operators of the facility. The plant was again inspected on February 8 and February 18, 1983. These inspections disclosed solids were not settling out of the wastewater in the settling tanks; inadequate chlorination of the wastewater was being obtained in the chlorination tanks; samples taken from various points in the system, the ditch along side the holding tanks and in Game Farm Creek, disclosed excess fecal coliform counts; and that very poor treatment was being afforded the wastewater received at the plant as evidence by high levels of total Kejhdal nitrogen and ammonia, high levels of phosphates, high biochemical oxygen demand, and low levels of nitrates and nitrites. In July, 1983, in response to a complaint about odors emanating from the plant, the facility was again inspected. This inspector found the aeration tanks anaerobic, effluent had a strong septic odor, the clarifier was cloudy, the chlorine feeder was empty, no chlorine residual in contact tank, final effluent was cloudy, both ponds were covered with duckweed and small pond was discharging in the roadside ditch (Exhibit 14) Expenses to Petitioner resulting from the inspections intended to bring Respondent in compliance with the requirements for wastewater treatment facilities are $280.32 (Exhibit 9)