Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, 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 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of March, 2000.
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.
Findings Of Fact Kearney is engaged in the development of real property in and around Hillsborough County, Florida, and is located in Tampa, Florida. Corrugated is a Louisiana Corporation which maintains a local headquarters in Tampa, Florida, and is presently seeking a business outlet in Hillsborough County for the assembly and distribution of metal buildings. At all times material hereto, Kearney and Corrugated have been parties to a real estate transaction concerning certain real property located at 1920 U.S. Highway 301 in Tampa, Hillsborough County, Florida. The subject property consists of .82 acres of undeveloped land which is located in an area of rapid commercial and industrial growth. Under the Hillsborough County Zoning Code, the subject property is designated M-1, which authorizes commercial and industrial uses. Corrugated is the purchaser of the subject property, and proposes to establish an assembly and distribution center for pre-painted sheet metal buildings. Corrugated does not propose to engage in any activity which will generate industrial wastewaters of any kind, and in particular, will not generate wastes or wastewaters of a "hazardous" or "toxic" nature. No centralized public wastewater service has been available to this property, and septic tanks with drainfields are utilized by both adjacent properties for their domestic and other wastewater needs. Kearney and Corrugated have determined that the property in question is suitable for the intended uses in all other respects, including water, electricity, and transportation. In September, 1988, Kearney and corrugated sought approval from Respondent of a permit to install an onsite sewage disposal system (septic tank and drainfield) for the sole purpcse of providing toilet services to employees of the company. The site plan and preliminary construction drawings for the on- site system were reviewed by the Department of Environmental Regulation (DER) to determine whether the project posed unusual wastewater problems or relied upon inadequately designed facilities. The DER had no objection to the installation of the septic tank and drainfield to serve the proposed system because of the non-hazardous character of the business, and the absence of floor drains in the proposed work areas. The Hillsborough County Health Department, however, gave immediate verbal denial of a septic tank permit based solely upon the industrial zoning of the property, and set forth its denial, in writing, on October 14, 1988. Following the County Health Departnent's denial, Kearney and Corrugated, based upon consultation with Respondent's officials in Tallahassee, assembled additional information to provide further assurance that the site would not generate industrial or hazardous wastes which could be disposed of via the septic tank. They provided detailed descriptions of each process to be performed by Corrugated, in substantiation of its claim that no wastewaters would be generated at the site. They also obtained the agreement of the Hillsborough County Building Department to subject any future building permit applications at the site to particular wastewater scrutiny, in addition to formal deed restrictions which they proposed for the subject property. Notwithstanding these additional representations, the Environmental Health Director of the Hillsborough County Health Department continued to reject the application on the sole ground that the property was zoned for industrial uses. On October 14, 1988, Petitioners submitted an application for a variance to the Hillsborough County Health Department and the Respondent, accompanied by supporting material setting forth the regulatory history referred to above, as well as the written representations and assurances, including proposed deed restrictions, which they had previously tendered to the County Environmental Health Director. They appeared before the Variance Advisory Review Board on November 3, 1988, to substantiate the specific measures which they proposed in order to ensure that no toxic or hazardous substances would be introduced into the septic tank system. These proposals were received by the Advisory Board without objection, and members observed that Petitioners had done everything they could do to provide the comfort margin which the agency sought. However, denial of the variance was recommended based upon the failure of Hi1sborough County to adopt a local ordinance providing for future inspections or controls by local officials to prevent future toxic or hazardous wastes from being disposed into the on- site sewage disposal system. Without such a local ordinance, the Advisory Board members expressed the view that it did not matter what the applicant presented to the Board. On December 2, 1988, the Respondent formally informed the Petitioners, in writing, that their application for a variance had been disapproved. This denial had the effect of formally denying Petitioners' permit application. Thereupon, Petitioners timely sought review of this decision by filing a petition for formal administrative hearing.
Recommendation Based upon the foregoing, it is recommended that the Respondent issue a permit for an onsite sewage disposal system to the Petitioners. DONE AND ENTERED this 18th day of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989. COPIES FURNISHED: Charles G. Stephens, Esquire Bayport Plaza - Suite 460 6200 Courtney Campbell Causeway Tampa, Florida 33607 Raymond Deckert, Esguire W. T. Edwards Facility 4000 W. Buffalo 5th Floor, Room 500 Tampa, Florida 33614 John Miller, General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power, Clerk 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 =================================================================
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 Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. 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. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
Findings Of Fact On December 28, 1984, Respondents Newton and Taylor applied to the Franklin County Public Health Unit for permits authorizing construction of septic tanks and drain field systems on properties they own adjoining the Apalachicola River. Respondent Newton filed two applications for two contiguous lots he owned on the river, while Taylor's application was for a parcel of property approximately 200 feet north of Newton's property, also adjoining the river. Sometime during the following two weeks, Donald Shirah, then environmental health specialist with the Franklin County Public Health Unit, a subdivision of HRS, performed a site evaluation of the sites referred to in the permit applications. The site evaluation performed by Mr. Shirah indicated that on each lot soil composition consisted of gray sand down to 45 inches, with "mottling" at 45 inches and wet soil from 46 inches to 60 inches. The soil composition reflected a wet season high water table lying at 45 inches below the ground surface. The soil report further indicated that the percolation rate of 2 units per minute was "an excellent percolation rate." Based on these tests, Shirah approved the sites for construction of the septic tanks and drain fields and established the points on the property where the septic tanks should be located. Thereafter, in May, 1985, the District II office of HRS, which directs the Franklin County Public Health Unit in matters concerning septic tanks and their installation, directed the Public Health Unit to reevaluate certain septic tank construction permits. Consequently, a letter from the Department went to all permit holders in Franklin County on August 5, 1985, including the Respondents. This letter informed them that their permits were subject to reevaluation. A considerable public furor ensued and, in an attempt to abate the discord and explain its intended action, HRS arranged a meeting with some of its public health officials and the Franklin County Commission on August 14, 1985. Respondent Newton attended this public hearing and exhibited his existing permit to HRS personnel in attendance. E. Charlton Prather, M.D., the state health officer for HRS, in attendance at this meeting, assured Respondent Newton that because his application had been made in 1984, prior to the designation of Franklin County as an "area of critical state concern," (effective July 1, 1985) and prior to the amendments to Chapter 10D-6, Florida Administrative Code, effective February 5, 1985, that his septic tank permits were still valid. Thereafter, Newton arranged with a contractor, to have the septic tanks installed, which was accomplished in approximately late October, 1985. Newton had received a letter on October 11, 1985, from the Franklin County Public Health Unit, instructing him to contact the County Public Health Unit before proceeding with construction of his septic tank systems. Notwithstanding this letter, and in reliance on Dr. Prather's assurance that his permits were valid, Newton proceeded to install his septic tank systems. The installations were completed, and Newton paid the installer for the work on or before November 5, 1985, some two weeks after installation. The installation of the systems came to the attention of the Franklin County Public Health Unit on approximately December 10, 1985, when the septic tank installer informed Gerald Briggs, the environmental health specialist with the Franklin County Public Health Unit, that Newton's septic tank systems had been installed and were ready for inspection. Mr. Briggs gave the final inspection and informed the installer that the tanks were installed in accordance with the specifications contained in the permits. He also informed the installer that he could not issue final approval of the systems because they were located within 20 feet of "marsh land" and that, because he observed standing water on or about the site, the soil conditions were such that the system would not operate properly. Mr. Briggs discussed the situation with environmental health director, John Kinlaw, who decided that the permits should be revoked because they were located within a "wetland" area as defined by the rules of the Department of Environmental Regulation; so called "jurisdictional wetlands." Mr. Briggs made measurements and examination of the soil and water conditions at the site and his measurements revealed standing water at a depth of 12 to 15 inches below the surface, contrary to the findings of Mr. Shirah, who performed the inspection which resulted in the issuance of the permits. Mr. Briggs also observed a "marsh are all visible within 20 feet of the systems characterized by a growth of "marsh grass." Mr. Briggs' inspection was made at a time shortly after the hurricane which struck this area in late November of 1985, characterized by a severe and extensive period of rainfall. Mr. Briggs also observed mottling near the surface of the soil, at all three sites, which indicates water being present intermittently, such that the soil, being alternately wet and exposed to air, oxidizes, leaving a rust colored stain. The septic tanks were installed at about a 5 1/2 or 6 foot depth. There is about 2 to 3 feet of fill sand at the site, below which the installer had to dig to place the tanks. The fill sand is underlain by muck at a depth of 4 to 6 feet below the ground surface. As a necessary part of the installation of the tanks, some of that muck had to be excavated and placed on top of the ground in the vicinity of the tanks and remained on or near the surface of the ground at the time of Mr. Briggs' inspection. The water table exists at a level of approximately 4 feet below the ground surface and when that wet muck was excavated, some of it necessarily remained visible on the surface of the sites in question. The systems constructed on Newton's lots are between 110 and 115 feet from the mean high water line of the Apalachicola River. The site description contained in the applications for the systems stated that the sites were to be 152 feet from the river. Nevertheless, there is no question that the sites are more than 75 feet from the Apalachicola River and that inspector Shirah assured the respondents that their sites were appropriately located. Indeed, he assisted in the location of them and informed the Respondents that the systems met pertinent regulatory requirements. That decision resulted in the issuance of the construction permits. Mr. Shirah established that the septic tank systems met all pertinent criteria concerning setback distances from lakes, streams, canals or other surface water bodies, including the Apalachicola River. Roger Newton, a Respondent and Bob Engle, former director of research for the Department of Natural Resources, both testified concerning their familiarity with the property in question and the general physical description and topography of the land. The general physical nature of the property in 1987 was the same as it was prior to and at the time of the issuance of the permits on January 14, 1985. They established that there was no lake, canal, stream or surface water within 75 feet of the septic tank systems or sites in question. A consent order was introduced into evidence which reveals, as a result of prior litigation in Franklin County Civil Case No. 75-55, that the Department of Environmental Regulation and the Army Corp of Engineers issued permits to the former owners of the property, which authorized them to fill the land at issue to a depth of 150 feet from the bank of the Apalachicola River westward. That fill was placed over the westward portion of this property, including the septic tank and drain field sites in question, to a depth of 2 to 3 feet. This had the result of raising the property to an elevation of approximately 10 feet above the surface waters of the Apalachicola River, which elevation dropped slightly to a road going through the middle of the lots, and remaining level thence westward to a point where the lots terminate in a marsh area. The consent order in evidence does not establish on its face that the fill was actually placed in a jurisdictional wetland area, for purposes of the Department of Environmental Regulation's jurisdiction over the landward extent of state water as defined by the vegetative index contained in Chapter 17-4, Florida Administrative Code. The testimony of a representative of the DER does not establish what dominant vegetational species might prevail on the sites in question which would render those sites within jurisdictional wetlands of the DER. The representative of the DER established that a jurisdictional wetland may be commonly referred to as a "swamp" or "marsh" and that, under prevailing policy of the DER, the fact that fill dirt has been placed on land does not render such land non-jurisdictional. Although this witness described DER's policy that issuance of a dredge and fill permit implies that the land in question is jurisdictional wetland, the fact remains that the face of the circuit court consent order in evidence does not establish that this indeed was jurisdictional wetland at the time the consent order was entered, nor at the present time. The consent order was the result of a settlement of that litigation, in effect a negotiated contract between the parties by which the dredge and fill permit was issued, in 1978. Further, although HRS purportedly has a policy that the term "surface waters," for purposes of the rules cited herein, includes within its ambit "swamps and marshes," the fact remains that in Rule 10D-6.42(38), the admitted 1985 clarification of that policy, surface water is defined as "...a recognizable permanent body of water, including swamp or marsh areas, contained within a recognizable boundary or bank..."(emphasis supplied). The septic tanks in question are not within 50 feet (for purposes of the pre-February 1985 rules) nor even within 75 feet of a swamp or marsh area which is contained within a recognizable boundary or bank. Even if marsh grass, (the species of grass has not been established) was observed growing within 20 feet of the septic tanks in question, it has not been established that was the boundary of a swamp or marsh area or other form of surface water body for purposes of the HRS rules in question. The testimony of the Petitioner's witnesses that marsh grass was observed growing close to the septic tanks does not overcome the showing by witnesses Newton and Engle that the actual water body, consisting of the marsh lying westward of the lots and disposal systems in question, was not within 75 feet of those systems. In addition to the question of the setback distance of the septic tank systems from the surface waters in question, it has not been established that this property is wetland within the DER's jurisdiction. The Petitioner purports to regulate the location of the systems by reference to Chapter 17-4, Florida Administrative Code, whereby the DER, by the use of the vegetative index, defines wetlands or the landward extent of state waters. Thus HRS seeks also to justify revocation of the permits on the basis that these tanks are located not 50 feet or less from a marsh, but rather in it. As found above however, such has not been proven to be the case. Although HRS purports to have a policy that any change which takes place on a piece of property, for which a septic tank permit has been issued, which creates a discrepancy between the actual state of the land and that represented on the permit application, renders the permit invalid, that situation has not occurred. In fact, it was shown that the fill in question has been on the property much longer than the period of time since the permit application and that the configuration and topography of the property remains the same as prior to December, 1984. Finally, it has not been proven that the surface waters observed standing on the lands of Newton and Taylor, shortly after the extensive rainfall associated with the hurricane in November, 1985, are such waters as contemplated by Rule 10D-6.046(3) or 10D-6.042(38). There has been no proof that this was other than rainfall nor that the water remained on the surface of the land in question for more than 24 hours. See Rule 10D-6.046(3), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the administrative complaints filed by the Department of Health and Rehabilitative Services seeking revocation of the septic tank construction permits issued to Jack Taylor and Roger Newton be dismissed in their entirety. DONE and ORDERED this 5th day of January, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0922, 86-1528 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. 4-6. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the preponderant weight of the evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not in its entirety supported by competent substantial evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not dispositive of material issues presented. 12-15. Rejected as irrelevant and immaterial. Accepted, but not in itself dispositive of any material issue presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the competent substantial evidence of record. Respondent's Proposed Findings of Fact: 1-6. Accepted. Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not dispositive of any material issues presented. Accepted, but not in itself dispositive of any material issue presented. Accepted, but not dispositive of any material issue presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as contrary to competent substantial evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. 13-14. Accepted. Rejected as irrelevant and immaterial. Accepted. Accepted. Rejected as constituting a conclusion of law and not a finding of fact. Accepted. Accepted. COPIES FURNISHED: John L. Pearce, Esquire HRS District II Legal Counsel Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303 John R. Perry, Esquire Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303 J. Ben Watkins, Esquire 41 Commerce Street Apalachicola, Florida 32320 John A. Kinlaw Environmental Health Director Franklin County Public Health Unit Post Office Box 490 Apalachicola, Florida 32320 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Mr. Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO.: 86-0922 ROGER R. NEWTON, Respondent. / DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO.: 86-1528 JACK TAYLOR, Respondent. / ORDER REMANDING TO THE DIVISION OF THE ADMINISTRATIVE HEARINGS I conclude that this case should be remanded to the Division of Administrative Hearing for a reweighing of the evidence. In Friends of Children vs. HRS, 504 So2d 1345 at 1348 (Fla. 1st DCA 1987), the Court held that where a Hearing Officer erroneously excluded evidence, the case should be remanded for the Hearing Officer to reweigh the evidence and make findings of fact on the basis of all admissible evidence. Returning to the present case, the Hearing Officer did not consider HRS exhibit Y, which he excluded as irrelevant, and the testimony of Larry Olney, an environmental specialist with the Department of Environmental Regulations, on the issue of whether the subject lots were jurisdictional land (for explanation see the rulings on exceptions number nine 9 and 11 to the findings of fact and exception number 1 to the conclusion of law). This evidence is relevant; thus, the evidence as a whole must be reweighed and findings made on whether the 75 foot setback requirement of Section 381.272(6)(c), Florida Statutes (1983) is satisfied. RULINGS ON EXCEPTIONS FILED BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES HRS excepts to the findings on page 5 of the Recommended Order concerning the statements of Dr. Prather at a meeting in August, 1985, on the grounds the statements are irrelevant. Exception number one (1) is denied as this finding simply Provides background for the case. HRS excepts to the finding in the paragraph spanning pages 6 and 7, regarding standing water. On this point as well as many others throughout the case the evidence is conflicting The Hearing Officers findings of fact are entitled to the same weight as the verdict of a jury. Gruman vs. State, 379 So2d 1313 (Fla. 2nd DCA 1980). It is the Hearing Officers function to resolve conflicts in the evidence, judge the credibility of witnesses, draw permissible inferences from the evidence, and make findings of fact; and the agency may not reject a finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. Heifetz vs. Department of Business Regulation, 475 So2d 1277 at 1281 (Fla. 1st DCA 1985). The finding to which HRS objects is supported by competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed. In exception number three (3) HRS asks that the Hearing Officer's findings regarding "mottling" be clarified. Exception number three (3) is granted. The presence of mottling indicates that water stays at a certain level for a considerable length of time on a regular basis. HRS excepts to the finding on page 7 of the Recommended Order, that "the water table exists at a level of approximately 4 feet below the ground surface." The finding is based on competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed. HRS excepts to the finding on page 8 of the Recommended Order, that no surface water existed within 75 feet of the septic tank systems in question. The finding is based on competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed. HRS excepts to the finding that the subject lots were not DER jurisdictional wetlands. This finding cannot be rejected as it was the subject of contradictory evidence. There was evidence that the lots had been filled and were no longer swamp or marsh. This Order requires that the evidence be reweighed. In exception number seven (7), HRS maintains that the subject lands were wetlands and that there was no conflicting evidence on this point. This issue was the subject of sharply conflicting evidence. As Pointed out in exception number two (2), it is the function of the Hearing Officer to resolve conflicting evidence. This Order requires that the evidence be reweighed. HRS excepts to the finding on page 10 of the Recommended Order, that the species of marsh grass which HRS personnel identified as such were not established. Again, this Order requires that the evidence be reweighed. It is noted that several species were identified in HRS exhibit Y which the Hearing Officer ruled was irrelevant. HRS excepts to the Hearing Officer's finding with respect to HRS' reliance on the jurisdictional evaluation by DER authorized by Chapter 17-4, Florida Administrative Code. HRS does not regulate the location of on-site sewage disposal systems by reference to this chapter. Rather, HRS regulates the location of such systems by reference to Chapter 10D-6, Florida Administrative Code, and in this instance reads the terms "swamp" and "marsh", which were undefined in Chapter 10D-6, Florida Administrative Code, in pari materia with the definitions of wetlands in Chapter 17-4, Florida Administrative Code. Exception number nine (9) is granted. A determination by DER that property is wetlands under its rule is highly relevant to whether the property is swamp or marsh under the HRS rule. HRS excepts to the statement in the Recommended Order that HRS has a policy that any change which takes place on a piece of property, for which a septic tank permit has been issued, which creates a discrepancy between the actual state of the land and that represented on the permit applicant, renders the permit invalid. This is not HRS' policy. This portion of exception number ten (10) is granted. Regarding the Hearing Officer's finding on the extent of surface water, again the evidence was conflicting. HRS objects to the finding in the conclusions of law section, that HRS has "changed" its interpretation of the rules regarding permitting of on-site sewage disposal systems in DER jurisdictional areas. It has been and remains HRS' policy to deny the permitting of such systems in DER jurisdictional areas. This is a sound policy as it is likely to be very unusual that land which is "wetlands" under the DER rule would nevertheless meet the criteria for installation of a septic tank under HRS rules. HRS is obligated to enforce its own rules, Section 120.68(12)(b), Florida Statutes; and if the facts are such that a septic tank is lawful under HRS statutory and rule authority it must be approved. While not applicable to this case, I direct that serious consideration be given to amending the HRS rule to adopt by reference the DER rule. The Apalachicola River is a fragile and irreplacable jewel in Florida's ecological crown. If that river and the bay nourished by it are destroyed it is likely to be caused by the cumulative effect of many small decisions, each of which, individually have an almost imperceptible effect. The enforcement of HRS' septic tank rules will hopefully help prevent loss of the river. Exception number eleven (11) is granted. EXCEPTIONS TO CONCLUSIONS OF LAW HRS excepts to the Hearing Officer's ruling excluding from evidence HRS exhibit Y, the DER jurisdictional report. This exception is granted as the exhibit is highly relevant on the issue of whether the septic tanks were installed in or within 75 feet of marsh or swamp surface water areas. HRS excepts to the conclusion that under the rules prevailing at the time the applications for permits were filed, a 50 foot setback was required. The statutory requirement was 75 feet; thus, the rule was repealed by implication. Section 381.272(6)(c), Florida Statutes (1983). This exception is granted. HRS excepts to the conclusion that HRS was attempting to expand its jurisdiction of wetlands. See the ruling on exception number eleven (11) to the findings of fact. Here HRS further argues the jurisdictional issue. See the ruling on exception number eleven (11) to the findings of fact. HRS maintains that the Hearing Officer concluded that the high water line of the swamp or marsh could not be determined. From a review of the transcript and exhibits it is clear that conflicting evidence was received on the setback issue and that findings were made. This Order requires that the evidence be reweighed. HRS excepts to the conclusion that the permits must be honored because they were not shown to contain knowingly false or misleading information. The decision on these permits must be based on application of the setback law; thus, this exception is granted. Here HRS further argues the jurisdictional issue. See the ruling on exception number eleven (11) to the findings of fact. Based on the foregoing, it is adjudged that this case be remanded to the Division of Administrative Hearing for further proceedings consistent with this Order. DONE and ORDERED this 15th day of February, 1988, in Tallahassee, Florida. Gregory L. Coler Secretary Department of Health and Rehabilitative Services Assistant Secretary for Programs COPIES FURNISHED: John R. Perry, Esquire District 2 Legal Counsel 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 J. Ben Watkins, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Michael Ruff Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 John L. Pearce, Esquire District 2 Legal Counsel 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 John A. Kinlaw Environmental Health Director Franklin County Public Health Unit Post Office Box 490 Apalachicola, Florida 32320 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 16th day of February, 1988. R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32299-0700 (904)488-2281 ================================================================= ORDER DECLINING REMAND =================================================================
The Issue Whether or not Petitioners should be ordered to pay reasonable costs and attorney's fees to the Respondent North Peninsula Utilities Corporation, and, if so, the determination of the amounts of costs and attorney's fees.
Findings Of Fact A brief background of the parties' history is important to disposition of the attorney's fees and costs motion. Petitioner Thomas Visconti is a resident of Seabridge Subdivision and is provided with wastewater treatment service by Respondent NPU. His property is not adjacent to NPU's treatment facility and the record does not establish that Mr. Visconti owns or operates any potable water wells within the vicinity of NPU's facility. See Finding of Fact 19, infra., concerning absence of any potable wells that could be affected by rerating the percolation pond. SCA is a homeowner's corporation which does not own property adjacent to the NPU facility, but which allegedly has members who do. The authority of the SCA vice-president to file the initial petition in November 1993 is subject to some conjecture, since the way this was done was because the SCA president informally delegated all duties to the vice-president while the president was out of state and all or most of the members signed the petition. There is no evidence the SCA bylaws permitted either such a delegation or the act of filing the Section 120.57(1) F.S. petition. Although an amended petition months later cured the "authority to file" problem, no evidence ever established which, if any, association members owned property adjacent to the NPU facility. Respondent NPU has owned and operated its Seabridge wastewater treatment plant since 1989. At that time, the plant had been rated at .9 MGD because of the previous owner's decision to economize by using an extended aeration form of treatment rather than contact stabilization method for which the plant had been designed. If the previous owner had utilized the contact method, the facility would have been rated at .157 MGD. The capacity of the plant percolation ponds at the time NPU acquired the facility was .157 MGD. In 1991, NPU applied for and received a Department of Environmental Regulation (DER, predecessor agency to DEP) permit to expand the facility to a treatment capacity of .210 MGD. Legal and appropriate notice of the Department's Intent to Issue was provided to the public. It was never formally challenged pursuant to Section 120.57(1) F.S., and the DER permit became final. Mr. Visconti and SCA felt abused by the agency and by NPU because they, Visconti and SCA, had missed that window of opportunity to challenge the 1991 plant expansion permit. Thereafter, they proceeded to fight NPU on the expansion and every other issue in whatever forum was available, notably before the Volusia County Commission and the Florida Public Service Commission. Mr. Visconti, acting as head of the SCA Sewer Committee, wrote a March 10, 1993 letter to DEP that stated, in pertinent part, as follows: Seabridge Civic Association, Inc. (hereafter "SCA") wishes to apprise you that SCA hereby intends to petition the DER for an administrative hearing(s) upon your giving any Notice of Intent to Issue any further permits, particularly any future 0.210 MGD Operating Permit, for the "Seabridge Subdivision" Sewer Treatment Plant. The letter, confirmed by Mr. Visconti's and Mr. Tyde's oral testimony, shows that Mr. Visconti and SCA intended to oppose any permit NPU applied for, regardless of its purpose, and that they knew of the original .210 MGD permit at that time. It goes on to protest sewer connections and previously finalized old permits. Mr. Visconti also wrote a July 2, 1993 letter to DEP, limiting communication, which stated, in pertinent part, as follows: Effective after today, please be advised that the official single point communication link between DER and SCA is with SCA President Charles Dassance. NPU's consulting engineer submitted "as-built" plans of the expansion in early 1993 after the NPU plant expansion construction had been completed. The percolation pond had been expanded to a lesser degree than that authorized by the 1991 DER permit because NPU had had to accommodate Volusia County setback requirements which eliminated approximately 11,000 square feet of pond bottom. NPU's engineer timely made the Department aware of the discrepancy and discussions occurred with the Department as to how to resolve it. NPU's engineer commissioned a groundwater engineering company to prepare a report to justify effluent disposal capacity of the percolation pond at the rate of .210 MGD, which was done on April 12, 1993 by PSI/Jammal & Associates ("the April Jammal report.") Not satisfied that the model used by Jammal for the April report could be verified by computer means available to the Department, DEP required a corroborating mounding analysis which was submitted on July 23, 1993 ("the July Jammal report.") In the meantime, DEP limited the percolation pond loading rate to .151 MGD until the applicant could justify a higher loading rate. NPU's 1991 construction permit for .210 MGD had expired in July of 1993. Needing a vehicle by which the review of the applicant's request to rerate the pond could take place, DEP required submittal of a construction permit application, which NPU subsequently filed on August 11, 1993 at the Department's Orlando office. To demonstrate reasonable assurance for the rerating authorization, NPU submitted the July 23 mounding analysis and showed that the loading rate would not be greater than 5.6 gallons per day per square foot. Percolation is considered to be excellent at the Seabridge treatment plant site because of the soil types underlying it, and the 5.6 figure is within the parameters of DEP's current rules. On October 26, 1993, DEP issued its Notice of Intent to issue the rerating permit for .181 MGD, calculated by multiplying the pond bottom area by the loading rate of 5.6 gpd2, which constituted a reduction from the 1991 .210 MGD loading rate approval. The Notice was published on November 11, 1993, and both Petitioners received individual Notice of the Intent to Issue. On November 22, 1993, SCA filed its petition challenging the proposed rerate authorization. Petitioner Visconti timely filed his petition on November 26, 1993. To establish substantial interests, Petitioners generally alleged that the noise, odor, and unsightliness of the plant would be increased if the rerating were to be approved. They also alleged adverse effects to property values, disparities in the technical information NPU had provided in support of its rerating application, and improper procedures employed by DEP in that it had not coordinated with Volusia County. Petitioners' asserted that their "proper purpose" for filing their petitions was that they had seen a 1993 letter of the DEP Regional Director to the effect that the pond was only licensed for .151 MGD and they assumed a new permit application for .181 MGD would constitute a dangerous increase. This assertion is spurious because both Mr. Visconti and Mr. Tyde admitted they had not even seen the rerate application before filing their petitions and that they did not know what the rerate application said until well into the formal administrative hearing process. Assuming, arguendo that the prior letter and DEP's Notice of Intent on its face could have misled Petitioners into believing there would be an increase from .151 MGD to .181 MGD instead of a decrease from .210 MGD to .181 MGD, that, alone, does not demonstrate a proper purpose in light of all the contrary and clarifying information available to Petitioners upon reasonable inquiry and which they chose to ignore. Because of the allegations of technical disparity and improper procedure, Visconti's petition was sustained against NPU's motion to dismiss with one paragraph struck. The SCA petition was dismissed for lack of showing of substantial interest and the amended SCA petition was challenged by NPU on the same basis, with ruling reserved for the recommended order. (See, the April 8 and June 6, 1994 orders, discussed supra.) After acknowledging on June 15, 1994 that NPU could demonstrate reasonable assurances, Petitioners presented evidence with regard to whether they had conducted a "reasonable inquiry" prior to filing the November 1993 petitions, but presented no proof as to their allegations of substantial interest contained in their petitions. Based on the evidence, it is found that neither Petitioner had any substantial interest which gave them standing to proceed with their challenges. Prior to filing their petitions, neither Petitioner had looked at NPU's August 1993 permit application. Between the Notice of Intent to Issue and filing their petitions, neither Petitioner contacted either DEP or NPU, nor conducted any review of the DEP files for data in support of their contention that the rerate authorization had been improperly granted by DEP. Petitioner SCA relied entirely on research conducted by Mr. Visconti when he had been chairman of SCA's Sewer Committee prior to July 2, 1993. Mr. Visconti's last review of NPU's files at the Department had been in June 1993, two months before the rerate application was even filed. Mr. Visconti ostensibly filed his petition upon his own opinion that the pond capacity was being increased from .151 to .181 instead of decreased from .210 to .181. His testimony was evasive or obstructionist in replying to reasonable questions concerning his area of expertise for forming his opinion, except to say that as a management consultant for unspecified high technology companies on how to manage their programs for federal, state, and local governments, he could interpret rules as well as anybody. As to his interpretation of DEP rules, however, he testified that he did not know precisely what the DEP capacity rules were; he did not ask any questions of DEP after the notice of intent to grant was issued, and he relied on hearsay from other SCA members. He never contacted NPU or their engineers after the rerate application. He opposed NPU's entitlement to the rerate permit even if NPU met all DEP rules, and he intended that his petition would cause the plant to go back the way it was before the 1991 expansion. He knew that the F.A.C. standard had changed to permit 5.6 GPDs, but he still objected to granting the permit on the terms contained in the rule. Mr. Visconti further testified that he knew in 1991 that a permit for .210 capacity had been issued and that the 1991 assessment was that percolation was excellent at the site. Although he had not seen the new permit application before filing his petition, he testified that he would not have cared if the application had said it reduced from .210 to .181, because he would still believe it was an increase. He never checked to see if the Intent to Issue had reconciled his pre-application concerns. He told himself the rerate would possibly increase pollutants. He did not know if June 1993 letters he relied on concerning a permit expiring and a .151 capacity of the pond had anything to do with the new permit application; he did not ask anybody, but just decided that they did. He admitted he intended to contest any and every permit NPU ever applied for regardless of what the permit was for. Despite the fact that the percolation pond has no equipment in it, he felt it was just "logical" that noise would increase. He admitted that he has never even looked over the fence, and so his petition's complaint of unsightliness was based solely on the already completed plant expansion, not the 1993 rerate application for the percolation pond which his petition challenged. He never asked DEP or any lawyer if noise, odor and aesthetics constitute pollution concerns; he assumed DEP personnel were incompetent; he decided DEP was withholding information from him because DEP did not keep all old permits for one facility or site in a single file and because papers he had seen in Public Service Commission and Volusia County files were not always in DEP files. He did not verify if the allegation in his petition that NPU did not own the land had been resolved before he filed his petition. He did not know that it had been resolved. Mr. Visconti left town for the entire five months immediately after filing his petition, with no concern as to how this might affect litigation. Mr. Tyde, now president of SCA, also testified that he filed the SCA petition because he believed there was to be an expansion of the plant. He specifically testified that he relied on Mr. Visconti's old research, except that he massaged some figures of his own based on standards of the Department of Health and Rehabilitation so as to compare that agency's condominium connection requirements with single family dwelling connections. Apparently, SCA opposes the influx of condominiums to its area. However, this subject matter has no real nexus to the gallonage one NPU percolation pond can accommodate under DEP rules, and it only goes to the Petitioners' belief that any change, starting with the 1991 expansion permit, impacts on property values and plant capacity and is simply a bad thing. Mr. Tyde filed SCA's initial petition without knowing if the SCA by-laws permitted him to do so. He decided there was expansion solely on the basis of a DEP letter that had been written before the current application was made. He believed erroneously that the words "rerating" and "increase" are synonymous. He never contacted anybody at DEP to verify his analysis; he filed the petition within nine days of the Notice of Intent to Issue, concentrating not upon the validity of the allegations but upon format. He knew there were no potable wells that would be affected by the plant so that paragraph six of SCA's amended petition drafted to further explain the disparities which were alleged environmental dangers could not possibly be correct. The intent of the SCA petition was not to challenge the pond rerating but to revert the area to what it had been before NPU's completed 1991-1993 expansion, and it was filed with the knowledge that NPU had spent a lot of money to complete that construction and would have to spend more to litigate the pond rerate application. When Petitioners admitted on the day scheduled for formal hearing on the merits that NPU and DEP would be able to show reasonable assurance for granting the permit, they thereby admitted that their petitions' allegations of disparities in the technical information NPU had provided could not be substantiated. Evidence at the fees hearing showed their allegations about data disparities were irrelevant to the pond rerate permit because the "disparities" the Petitioners were concerned about related to the collection or treatment processes of the plant, the permit for which had long-ago become final, or they were irrelevant because they were related to potential enforcement actions if something went wrong at the plant or if NPU operations violated DEP rules. The so-called "disparities" did not concern the percolation pond's capability. No reason to file any violation/enforcement action against NPU existed at the time the petitions were filed. Because the NPU facility was never involved in a DEP enforcement proceeding and was in constant touch with DER per the procedures outlined in Findings of Fact 5, and 7-9 and 20 supra, it is found that the "as built" construction of the pond at less than the originally authorized maximum capacity did not provide evidence that DEP had not followed its own rules for processing NPU's 1993 permit application and for its Intent to Issue. With regard to the procedure (mounding calculations) employed by DEP in approving the rerate, it was shown that Mr. Visconti waited until February 1994 to discuss his 1993 materials with a college professor of geology, another professor, and a professional engineer. Only in February 1994, three months after filing the petitions, did Mr. Visconti present these "experts" with the 1993 data, and even then he asked them about hypothetical flows from values he made up. When they could not give him any definitive answers, he claimed that DEP had withheld information and moved to continue the administrative proceeding. In considering the evidence, the candor and demeanor of all the witnesses has been weighed and the issue of whether or not DEP impeded Petitioners' access to agency files at any time is resolved against Petitioners and in favor of the agency. In so doing, consideration has been given to the evidence that SAC allowed Mr. Visconti to "take the point" on all investigations instead of doing anything on its own. That Petitioners, as laymen, may have been confused by DEP's use of discreet files for each of the successive permits applied for by NPU and granted or denied by the agency has been considered. The undersigned also appreciates that Mr. Visconti never understood that after some permits were granted, only microfilm copies of certain preliminary items remained. However, even so, Mr. Visconti's own testimony is to the effect that he was so fixated on the idea of a "conspiracy" or "collusion" between DEP and NPU that he rejected all explanations by DEP personnel and persisted in the ideation that DEP's failure to copy him with copies of all correspondence between the applicant and the agency pointed to collusion. He assumed, without good legal cause, that if something he had previously seen or thought should be in the agency file was not, in fact, in the agency file, he therefore had a right to file a petition against any permit application. Likewise, he decided, also without good legal cause that if there were anything in the agency file that caused him "concern" or which was different than the current permit application papers but which applied to any prior permit, he had a right to challenge the current permit application. The single instance of lack of cooperation and courtesy by one DEP employee as related by Ms. McCarthy concerning one telephoned question is accepted, but that single incident is not enough to swing the balance and absolve Petitioners of making a reasonable investigation before they filed their petitions. There is no evidence that the single question related to this permit; it was asked before the application for this permit was made and before the Intent to Issue was published; and the question apparently was never repeated. None of this evidence established any proper purpose in Petitioners for alleging data disparities or procedural irregularities, however defined. NPU presented evidence it had employed its attorney and agreed to pay certain fees and that its attorney's fees and costs are reasonable with the exception of the billings between October 5 and October 29, 1993. The allowable amount totals $24,690.00 in attorney's fees and $2,434.83 in costs. Petitioner Visconti established no evidence with regard to his counter motion for attorney's fees upon any legal theory whatsoever. DEP established no independent motion, entitlement, or amount of fees and costs.
The Issue The first issue is whether Petitioner, Jacqueline M. Lane (Lane) has standing. The second issue is whether International Paper Company (IP) provided reasonable assurances it has the ability to meet the conditions of the existing industrial wastewater permit for the wastewater treatment facility at the paper mill in Cantonment, Florida, pursuant to Rule 62- 620.340(3), Florida Administrative Code. A final issue is whether Lane litigated this matter for an improper purpose.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: The Parties The Department is charged with the responsibility for determining whether to approve the Application for transfer of permit number FL0002562-002-IWF/MT from Champion to IP. IP is a corporation authorized to do business in the State of Florida. IP operates a bleach kraft fine paper mill in Cantonment, Florida, formerly operated by Champion. Lane is a citizen of the State of Florida who lives on Perdido Bay. Application for Transfer of Industrial Wastewater Permit Number FL0002526-002-IWF/MT In June 2000, IP notified the Department it was acquiring Champion as a wholly owned subsidiary. IP took over operation of the facility in Cantonment on January 1, 2001. At that time, the companies had fully merged. On January 19, 2001, IP timely submitted an Application for Transfer of a Wastewater Facility or Activity Permit (Application) and advised the Department that "the permittee name for the pulp and paper mill in Cantonment, Florida[,] has been changed from 'Champion International Corporation, Inc.' to 'International Paper Company.'" Several wastewater permit- related documents were submitted to the Department as part of this name change. The Department processed IP's Application to transfer the facility's permit pursuant to Rule 62-620.340(3), Florida Administrative Code. "The parties agree that this matter is controlled by Rules 62-4.120 and 62-620.340, F.A.C., regarding the transfer of the permit. The parties [did not agree] upon what conditions of the combined permits are applicable to determine whether the Department has received 'reasonable assurances that the conditions of the permit will be met.' Rule 62-620.340(3), F.A.C." Rule 62-620.340(3), Florida Administrative Code, provides: "The Department shall allow the transfer under subsection (2) of this section unless it determines that the proposed permittee cannot provide reasonable assurance that conditions of the permit will be met. The determination shall be limited solely to the ability of the proposed permittee to comply with the conditions of the existing permit, and it shall not consider the adequacy of these permit conditions." (Emphasis added). This proceeding does not involve an enforcement action or consideration of whether the wastewater permit, and related documents, should be renewed. Champion's renewal application is under consideration by the Department. The parties agree that the documents described in Findings of Fact 10-19, infra, set forth the conditions of the permit number FL0002526-002-IWF/MT at this time. These documents are listed below: November 15, 1995, DEP Order (combining the NPDES permit and the State- issued wastewater permit) April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit) January 3,1983, EPA NPDES Permit December 13, 1989, DER Temporary Operating Permit December 1, 1989, DER Consent Order December 12, 1989, DER Variance The Permit(s), Consent Order, Variances, and Related Permit Documents Before May 1, 1995, in order to operate the wastewater treatment facility at the mill in Cantonment, both state and federal permits were required. The Department or its predecessor agency, the Department of Environmental Regulation (DER), issued state permits pursuant to Sections 403.08 and 403.088, Florida Statutes, and applicable rules. The United States Environmental Protection Agency (EPA) issued federal National Pollutant Discharge Elimination System (NPDES) permits pursuant to 40 Code of Federal Regulation Section 124.15. As a result of EPA's delegation of its NPDES authority to the Department in 1995, only one permit is now required. The 1995 Memorandum of Agreement between EPA and the Department does not allow the Department to modify a permit that has been administratively continued. Modifications to permit limits have to be made through the permit renewal process. On or about January 3, 1983, the EPA issued a NPDES permit to St. Regis Paper Company, authorizing discharge from the facility, located at the paper mill in Cantonment to the receiving waters named Eleven Mile Creek (creek). This NPDES permit contains the federal permit conditions applicable at this time. (EPA has since used the facility as a benchmark model to develop effluent guidelines for its new cluster rule.) On December 1, 1989, the DER entered into a Consent Order with Champion International Corporation. This Consent Order was issued as a result of Recommended and Final Orders issued in Perdido Bay Environmental Association, Inc. et al. v. Champion International Corporation and Florida Department of Environmental Regulation, 12 F.A.L.R. 126 (DER Nov. 14, 1989). This Consent Order allowed the continued operation of the facility. As a compliance requirement, a study report was required to include "an evaluation of technologies and treatment alternatives . . . to determine the most environmentally sound and practicable means to correct identified water quality violations caused by Champion." The studies required by the Consent Order are needed to pinpoint sources of pollutants in the creek and Perdido Bay (bay). The Consent Order has no expiration date although it is tied to the temporary operating permit (TOP) which had an expiration date of December 1, 1994. Extensive studies have been submitted to the Department pursuant to paragraph 14.A. of the Consent Order, which are necessary to trigger "the final compliance plan." This has been an ongoing process since the Consent Order and TOP were issued. The conditions in the Consent Order and TOP apply at this time. Various discharge limitations and monitoring requirements are set forth in the TOP. On December 13, 1989, DER issued a TOP, Number IT17- 156163, to the facility, which was issued in conjunction with the Consent Order. The TOP expressly relies on the Consent Order for authorization. It contains the effective state permit conditions at this time. On December 8, 1989, DER issued a Variance from water quality standards for color (transparency), iron, zinc, and the general water quality criterion for specific conductance. The standards in the Variance are part of the TOP and are effective at this time. The mill no longer needs the Variance for iron and zinc. As to those parameters, it currently operates at lower levels than under the Variance. On November 15, 1995, the Department combined the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT. The TOP and NPDES permit were administratively continued when renewal applications were filed. The Department will transfer to IP the permit documents described in Finding of Fact 9, supra. The Department will also transfer the pending permit renewal applications filed by Champion. Wastewater Treatment Facility at the Paper Mill in Cantonment, Florida In the past, Champion owned and operated a 1400-ton per day bleach and kraft pulp and paper mill in Cantonment. The operation is now conducted by IP. The paper mill treats its effluent from industrial activities at an on-site wastewater treatment facility (facility). Stormwater that falls on the industrial portion of the mill is also processed through the facility. The mill is required to and takes monthly samples from the creek for a few parameters, e.g., DO and pH, to provide data to the Department for use in developing possible changes to effluent limitations in a final compliance plan. There is an installed structure that continuously measures the flow of the effluent at the end of the facility's treatment system. This point, i.e., where the flow is measured, is called the Parshall Flume which is the compliance point for the facility. The effluent at Parshall Flume is automatically sampled each day, analyzed, and reported on a monthly basis to the Department. The analyses are reviewed and compared to the effluent limitations for a particular permit. The treated effluent is discharged from the Parshall Flume through a pipe to natural wetlands. In this wetland area, the treated effluent combines with several streams, non- processed stormwater, and runoff from land south and west of the facility. Runoff from residential areas and areas west of the mill, including the City of Cantonment, also flows into this area. The IP mill is not the only source of discharge into this area. After passing through the natural wetlands, the treated effluent runs through a pipe that discharges into the creek from below the surface. This point is about a half-mile from the facility. It is called the "boil" because the water from the pipe boils up into the creek. The "boil" is not a compliance point. On occasion, a Department inspector has taken water samples at the boil. Each time, his sampling has shown water quality standards were met at the boil. At the boil, the water flowing into the creek from the pipe contains treated effluent and drainage from areas not associated with the mill. From the boil, the creek flows a distance of fourteen miles to Perdido Bay (the bay). At the boil, there is also stormwater runoff and drainage from residential areas flowing into the creek in addition to the water from the pipe. Along the sides of the creek to the bay is a large drainage basin, which includes agricultural and residential runoff that flows into the creek. The boil, which is non-processed stormwater of the creek, could be contaminated from non-IP sources. Sources of pollutants in the bay include residential and agricultural stormwater runoff, Perdido River, and the creek. The Escambia County Utility Authority (ECUA) also has a treatment plant that has a discharge into the bay. Saltwater intrusion and runoff from development are additional sources of pollutants in the bay. Lane takes samples at the boil and most recently in May and June of 2001. Her measurement of dissolved oxygen (DO) was approximately 2.6 and for specific conductance, between 1600 and 2000. Lane also samples the water at a bridge (279A) two miles down the creek from the boil. Lane testified regarding bacteriological quality at the boil or further down stream, that fecal coliforms, including the bacteria Klebsiella, were present. Lane is not a certified sampler. She does not have the required quality control/quality assurance program. Lane does not know the Department requirements to sample dissolved oxygen. She could not describe an approved standard for such sampling. Surface Water Quality Standards Unless otherwise provided through relief mechanisms, discharges into surface waters must meet the minimum water quality standards set forth in Rules 62-302, Florida Administrative Code. Relief mechanisms include variances, consent orders, and temporary operating permits. The Department has issued variances, consent orders, and temporary operating permits to allow permit holders time to respond to changes in water quality standards and related regulations that reflect changes in understanding of environmental impacts to water bodies. Permit Conditions The permit conditions do not require compliance with all the water quality criteria in Chapter 62-302, Florida Administrative Code, for water quality parameters. The Department has not yet agreed on "final treatment solutions" it can require under the Consent Order. See, e.g., Finding of Fact 49. Specific deviations from the surface water quality standards in Chapter 62-302, Florida Administrative Code, are authorized by the Consent Order, TOP, variance, and NPDES permit. The specific effluent discharge limitations in the TOP and NPDES permit, are for BOD5, TSS, iron, specific conductance, pH, and zinc. (The reference to condition 12 in paragraph 25 of the TOP has not been amended.) Several of the effluent limitations (e.g., specific conductance) were granted by the Variance. Paragraph 26 of the TOP specifies the monitoring and frequency requirements for the monitoring at the Parshall Flume. This monitoring information can be used by the Department to pinpoint sources of pollutants in the creek and in order to establish numerical, water-quality based effluent limitations for those sources. General Condition 5 of the TOP does not per se impose on the mill the duty to meet all water quality standards in Chapter 62-302, Florida Administrative Code. The TOP authorizes "a certain amount of pollution" and "certain relief." The TOP further established a "compliance schedule" for Champion to study the impacts of the discharge. However, the Department rules allow for reopening of the TOP and changing the permit conditions to reflect new evidence causing a concern regarding pollution. Here, the Department has not reopened the TOP. The permit, including the TOP and Consent Order, allows the mill a period of time to come into compliance with all minimum water quality standards. When a final permit is eventually issued, the facility will have to meet these standards absent some express relief mechanism at that time. IP Provided Reasonable Assurances of Its Ability to Meet Permit Conditions The Department employee who reviewed IP's Application to transfer the permit is an expert in environmental engineering. At the time he reviewed the Application, he was familiar with the existing permit conditions. As part of his review, he ascertained whether IP was satisfying the conditions of the permit and determined it was. The Department reviewed IP's annual report and other corporate brochures as part of its processing of the transfer Application. Information in these documents revealed IP has obtained other Federal-type NPDES permits for other companies at several other facilities. The Department was familiar with IP's local management at the Cantonment facility when it processed the transfer Application. IP brings considerable "capability and talent" to the mill. The Department performed inspections during the last six (6) months and was familiar with the facility and wastewater system. IP is an international company with greater financial resources than Champion. It has approximately $30 billion in annual sales. Champion, in comparison, generated about $5 billion a year. It is clear that that the operation of the mill and the facility would have less capital and financial support without IP. Since June 2000, IP has worked with the Department in a continuation of the Department's concept of relocating the facility's discharge to wetlands. The plan considers removal of the facility's treated effluent from the creek to wetlands on IP's land and effectively eliminates it as a point source discharge and removes the discharge from the creek. IP will have a greater ability than Champion to meet permit conditions due to greater financial sources, technical staff, and resources. IP's management is committed to resolving water quality issues like specific conductance and is willing to resolve outstanding water quality issues in the bay and creek. In the view of the former Northwest District Director who worked on water quality issues at the facility for twelve years ending March 31, 2001, the current plan to discharge to wetlands will be implemented and allow compliance with all water quality standards. He also opines that IP has the ability to comply with water quality standards under the plan to discharge to wetlands. In the Department's view, IP has provided reasonable assurances that it has the ability to meet the existing conditions of the permit sought to be transferred. IP Complies with Permit Conditions as Evidence of Ability According to the Department's expert, Mr. William A. Evans, a professional engineer with a Master's degree in civil engineering and an expert in environmental engineering, there have been no verifiable violations of permit conditions and no exceedances since January 2000, before IP took over operations of the mill. On the other hand, Mr. Evans, in reviewing a discharge monitoring report for IP for April 2001, advised, during cross-examination, that there appeared to be "an apparent violation, exceedance of the permit" for specific conductance pursuant to the 1500 micromhons per centimeter limit in the EPA's version of the permit. However, the Variance, which is part of the Application, was granted "because there is no practicable means known or available for the adequate control of the pollution involved," i.e., specific conductance. The Department applies the limit of 2500 micromhos per centimeter set forth in the Variance for specific conductance, which is a reasonable interpretation of the permit documents. When the permit documents, including the Variance are read in this light, IP is in compliance with this limit. IP is in compliance with the Consent Order, NPDES permit, and Variance. In making this finding, the undersigned is mindful of Lane's arguments and facts presented. The issue here is not black or white; violation or no violation. As noted by Mr. Evans: This permit is recognized since '89 is [sic] not meeting water quality standards. It has all these documents because it doesn't. And they're still working under those. And the Department agrees with Ms. Lane that they are not meeting water quality standards in the creek. And we're working under these documents to make improvements. And so is Champion and so is IP. But they are not, in our opinion, violating the conditions of the permit. There [sic] are complying with studying it, meeting the interim limits that are set forth in the permit. And that is what the Statutes require when a facility can not meet all the standards of a permit. The Department, while considering the renewal application, has not approved it yet because they have not received reasonable assurances that new permit conditions can be met. Champion, and now IP, are facing the continuing challenge of satisfying, among other requirements, water quality standards, which takes time, money, and know-how. The Department rightly believes that IP can best meet this challenge. The Department's review of the monthly monitoring reports submitted by the mill since Champion was purchased reveals the facility has complied with permit conditions. The most recent monthly report was submitted May 23, 2001, and includes data through April 2001. During inspections at the facility since June 2000, the Department found no violations of permit conditions. The mill, under IP's operation, has not exceeded the fecal coliform conditions of its permit. The mill has no significant contribution to fecal coliform in the creek because it treats its own domestic sewage and meets the fecal coliform limit at the compliance point. Runoff along the creek from agricultural and domestic sources could contribute to fecal and total coliform in the creek. The Department enforces the "more stringent" pH condition in the 1989 TOP and Variance which is controlling over the less stringent standard in the 1983 NPDES permit. The pH limit in the NPDES permit is 6.0-9.0. The Department reasonably interprets the freshwater stream pH rule to mean enforcement is not required if the permittee meets the range in the rule (6.0-8.5), more stringent than the 9.0 limit in the NPDES permit. The facility's pH data satisfies this range. If the Department were to enforce a limit of 6.5, instead of 8.5, IP has the ability to meet the lower limit by installing one of several available technologies to control the pH levels. IP's current proposal includes one of these technologies. The biological integrity provision in the Consent Order requires studies on biological components of the creek and pH impacts this condition. Permit Conditions Affecting the Creek and Bay The permit does not require the facility to meet all the minimum surface water quality standards of Chapter 62-302, Florida Administrative Code, in the creek and bay. That is because of the relief mechanisms in the Consent Order, TOP, NPDES permit, and Variance. The Consent Order provides a time frame for the facility to come into compliance with water quality standards in the creek and bay. In terms of the Consent Order, the Department considers IP to be at the paragraph 14.A. step of the compliance schedule since the Department has not yet "resolved or agreed on the final corrective action required under this [C]onsent [O]rder." The Department considers the facility to be in compliance with permit conditions because it is "working under a complying [sic] schedule and an order or a temporary operating permit." See Finding of Fact 49. As long as IP is meeting the "interim limits that are set forth in the permit," it is not violating conditions of the permit. The Department is aware of water quality exceedances from the standards in the creek and bay caused by the mill. This data was reported in the "fifth year surveys." This information serves as a basis for making improvements and finding "a new solution for the effluent as required by the consent order." See Finding of Fact 49. Proposal for Joint Project with ECUA IP and the ECUA are working with the Department on a plan than would result in the discharge of IP's treated effluent to wetlands, thereby removing the effluent from the creek. IP's financial capability, size, and technical human resources make this plan feasible. IP will propose a plan to satisfy the Consent Order which consists of three parts: upgrading IP's industrial wastewater treatment facility; allowing ECUA to locate an advanced domestic wastewater treatment plant on its land; and disposing the treated effluent from both facilities to wetlands on IP's land through a pipeline. The proposed plan to discharge the facility's treated effluent to wetlands is a suitable solution that will allow the mill to meet minimum water quality standards. Lane has no objection to the plan to discharge to wetlands. It will resolve all her water quality issues. She believes the plan, similar to a prior plan, is "feasible." Standing and Improper Purpose Lane admits the Department is not making any changes to existing permit conditions before transferring it to IP. Lane agrees that changing the name on the permit from Champion to IP has no adverse affect on her. Lane brought this proceeding because she is dissatisfied with the manner in which the Department is enforcing conditions in the facility's permit. According to Lane, "They haven't done their duty." Her main complaints are with the Department's failure to enforce the permit conditions and the lack of a permit that makes the permit holder comply with Florida law. Lane feels that Champion violated permit conditions in the past, and IP is currently violating permit conditions and, as a result, the permit should not be transferred because a decision to transfer is an implicit finding of compliance. In this light, Lane argues that past performance can be an indication of future ability or lack thereof. Lane acknowledges that in order to add conditions to the existing permit, the Department must provide notice to the mill and give it a chance to meet the proposed conditions. She further admits the Department has not provided such notice. Lane proved that the environmental situation attending Champion's, and now IP's, operation of the mill and the wastewater facility has been and is less than optimum and in need of positive changes. The Department agrees and so does IP. Lane's personal observations of the condition of the creek and bay are documented. However, Lane did not prove that she will suffer an "injury in fact" if the permit and related documents are transferred to IP. Lane is not otherwise substantially affected by the Department's decision to approve the transfer. Lane's evidence did not rebut IP and the Department's proof that IP has the ability to comply with the permit conditions. The preponderance of the evidence shows that the environment in and around the mill and the facility has a better opportunity for improvement if IP takes control of the mill and facility. On the other hand, based on this record, Lane did not bring this case for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: Lane lacks standing to challenge the transfer of industrial wastewater permit number FL0002526-002-IWF/MT to IP because Lane did not prove that her substantial interests were being determined by the Department's transfer of the permit from Champion to IP; IP provided reasonable assurances it has the ability to comply with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT; IP has complied with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT, as the Department construes those conditions, since assuming control of the mill on January 1, 2001; and Lane did not participate in this administrative proceeding for an improper purpose. DONE AND ENTERED this 24th day of August, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 24th day of August, 2001. COPIES FURNISHED: Jacqueline M. Lane 10738 Lillian Highway Pensacola, Florida 32506 Terry Cole, Esquire Patricia A. Renovitch, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 301 S. Bronough Street, Fifth Floor Tallahassee, Florida 32302-1110 Craig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel 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 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
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
