The Issue The issue is whether Resort Village Utility, Inc., and SGI Utility, LLC, are entitled to a renewal of a permit for the construction and operation of a wastewater treatment facility with effluent disposal to a rapid-rate absorption field land application system consisting of three absorption beds on St. George Island in Franklin County, Florida.
Findings Of Fact In 1996, DEP issued Permit No. 235845 (subsequently renumbered Permit No. FLA010069-001) to RVU. The permit was issued pursuant to Adams v. Resort Village Utility, Inc. and Department of Environmental Protection, DOAH Case No. 95-0863 (Final Order February 23, 1996). Petitioner, in the instant case, was the petitioner in the prior case. RVU and DEP, Respondents in the instant case, were respondents in the prior case. The original permit authorized RVU to construct and operate an advance wastewater treatment facility with associated reuse/land application system (AWT facility) in a proposed mixed-use development on St. George Island in Franklin County, Florida. Mr. Ben Johnson was the owner of the proposed development and the principal of RVU when DEP issued the original permit. DEP issued the original permit for five years with an expiration date of March 1, 2001. The instant case involves a renewal of the original permit, currently designated as Permit No. FLA010069-002 (the Permit). Since the issuance of the original permit, the AWT facility has been constructed in accordance with its plans and specifications. However, at the time of the final hearing in the instant case, the AWT facility was not operational. The original permit contained certain groundwater monitoring requirements. These requirements included baseline monitoring to collect data on certain contaminants or pollutants before the AWT facility becomes operational for comparison to groundwater monitoring after the AWT facility becomes operational. The original permit did not specify the time frame for beginning and ending the monitoring. RVU furnished DEP with a baseline groundwater monitoring report in December 1997 and June 1998. By letter dated June 15, 1998, Garlick Environmental Associates, Inc., on behalf of RVU, advised DEP that further baseline groundwater monitoring would be suspended until February 1999. RVU properly suspended the baseline groundwater monitoring because of a delay in the construction and operation of the AWT facility. At the time of the final hearing, RVU had not resumed the monitoring. The AWT facility is scheduled to become operational in incremental stages beginning with 30,000 gallons of effluent per day and increasing to 90,000 gallons of effluent per day. The monitoring requirements in the original permit and the instant Permit are sufficient to show at each stage of operation whether the AWT facility will cause an increase in contaminants in Apalachicola Bay. Because the AWT facility is not currently operational, it is not responsible for causing any pollution. In October 1999, Mr. Johnson sold the subject property to SGI Limited Partnership, a Florida limited partnership. Mr. David Wilder is a principal in SGI Limited Partnership and vice-president of SGI Utility, LLC. On February 10, 2000, RVU filed an application with DEP to transfer the original permit to SGI Utility, LLC. By letter dated February 18, 2000, DEP granted the request to transfer the permit contingent upon approval of the sale of the AWT facility by the Florida Public Service Commission (PSC). The February 18, 2000, letter states that DEP would change its records to show SGI Utility, LLC, as owner of St. George Island Resort Village domestic wastewater treatment facility. DEP's letter states that it shall be attached to and become part of domestic wastewater Permit No. FLA010069. On September 1, 2000, SGI Utility, LLC, filed an application with DEP to renew the original permit. The application indicates that SGI Utility, LLC, is the applicant/owner/operator of the AWT facility. Mr. Wilder signed the application as the authorized representative of SGI Utility, LLC. A professional engineer signed the application in his professional capacity, as well as agent for SGI Utility, LLC. The application for permit renewal contains a copy of RVU's PSC certificate. The certificate grants RVU authority to provide wastewater service in Franklin County. The application included the following implementation schedule and completion dates: (a) Begin Construction, September 2000; (b) End Construction, March 2001; (c) Begin Reuse or Disposal, March 2001; and (d) Operational Level Attained, August 2001. SGI Utility, LLC, enclosed a check payable to DEP in the amount of $1,000 with the permit renewal application. The purpose of the check was to cover review fees. By letter dated September 28, 2000, DEP requested additional information. On or about October 5, 2000, the professional engineer for SGI Utility, LLC, sent DEP copies of the signed and sealed cover page for the permit renewal application. DEP subsequently sent SGI Utility, LLC, a copy of a Notice of Application. The notice stated that DEP had received the permit renewal application from SGI Utility, LLC. DEP expected SGI Utility, LLC, to publish the notice in a newspaper of general circulation. For the reasons set forth below, SGI Utility, LLC, never published this notice. After SGI Utility, LLC, received the Notice of Application, Mr. Wilder wrote a letter dated October 11, 2000, to DEP. The letter states that SGI Utility, LLC, as the proposed transferee of the Permit, had filed the application to renew the Permit on behalf of RVU, the current holder of the Permit. Mr. Wilder advised DEP that PSC approval was still pending. The letter states as follows in relevant part: Technically, therefore, SGI Utility, LLC is not yet the holder of the permit, although it is acting with the approval of and as the agent for Resort Village Utility, Inc. Additionally, should the publication Notice be amended to show Resort Village Utility, Inc. and SGI Utility, LLC as the applicant? By letter dated November 2, 2000, Mr. Johnson confirmed that Mr. Wilder was authorized to act on behalf of RVU with respect to all matters relating to the renewal and transfer of the Permit, including without limitation, signing all applications, documents, certificates and publication notices. Mr. Johnson's letter also states as follows in relevant part: This letter will also confirm your statement to Gary Volenac, P.E., that the form of the Notice of Application for the renewal of the permit previously submitted by the Department to Mr. Wilder by letter dated October 11, 2000, is acceptable with the exception of substituting Resort Village Utility, Inc. for SGI Utility, Inc. On November 23, 2000, the Notice of Application was published in the Apalachicola Times. The notice stated that DEP announced receipt of an application from David E. Wilder for RVU to obtain a renewal of the Permit. In a letter dated December 1, 2000, DEP advised SGI Utility, LLC, that it had been 52 days since SGI Utility, LLC, had been notified of deficiencies in the Permit renewal application. DEP reminded SGI Utility, LLC, that failure to supply the requested information might result in permit denial. Petitioner wrote DEP a letter dated December 4, 2000. Petitioner was concerned that the newspaper announcement named RVU as the applicant for renewal of the Permit instead of SGI Utility, LLC. Petitioner also noted that RVU had created a small lake on the property close to the AWT facility's largest absorption bed. Petitioner was concerned that flooding after heavy rains in the absorption bed area, together with the addition of the small lake, would present a threat of pollution to Apalachicola Bay. By letter dated December 6, 2000, SGI Utility, LLC, furnished DEP with a copy of the Notice of Application that was published in the Apalachicola Times on November 23, 2000. On January 18, 2001, DEP representatives (Joe May and Dave Krieger) met with Petitioner and an employee of SGI Utility, LLC (Morris Palmer), at the site of the AWT facility. The purpose of the visit was to conduct a routine inspection in response to the Permit renewal application and to address Petitioner's concerns. At the time of the inspection, construction of the wastewater treatment plant had not commenced. Two of the absorption beds had been installed. The third absorption bed had been flagged for construction. During the meeting on January 18, 2001, Mr. May noted that there could be a concern with rainfall run-on for one of the absorption beds. Mr. May suggested the creation of a berm at the entrance to the bed along the adjacent road to prevent rainfall run-on. Mr. May concluded that implementation of the approved stormwater plan would redirect rainfall run-off from the road. Mr. May also suggested the creation of a berm for another absorption bed. A berm between dunes adjacent to that bed would prevent run-on to the bed from high tide. During the meeting, Mr. May and Petitioner discussed the impact of heavy rainfall from a tropical storm in October 1996. The storm flooded isolated areas on St. George Island, including areas in the subject development. The isolated flooding lasted for several days. However, persuasive evidence received at final hearing indicates that the 1996 storm did not cause prolonged flooding, if any, in the absorption cells. Similar concerns about flooding in the absorption cells were addressed in the original permit. The absorption cells have been designed to ensure protection to the facility in the event of a large storm. The creation of the berms recommended by Mr. May will provide additional protection from run-on resulting from heavy rainfall. After the meeting on January 18, 2001, Morris Palmer constructed all of the berms as suggested by Mr. May. During the site visit on January 18, 2001, Mr. May and Petitioner discussed the impact of a small lake or pond created by RVU in the development after issuance of the original permit. The pond is the only change to the 58-acre development that was not contemplated prior to the issuance of the original permit. The pond is more like an isolated ditch that RVU excavated below groundwater level. RVU used the sand from the ditch to elevate the ground surface in the absorption beds and for other purposes. The pond is located approximately 527 feet from the AWT plant and 478 feet from the nearest absorption bed associated with the plant. Surface water drainage, if any, from the three absorption beds is away from the pond. Persuasive evidence indicates that the pond will not interfere with the AWT facility once it begins operation. Additionally, there is no credible evidence that possible flooding in the absorption beds will cause contaminates to collect in the pond and eventually result in a discharge of pollutants to Apalachicola Bay. Petitioner presented some evidence that the pond might act as a collection point for pollution from sources such as cars, animals, and other above-ground sources. However, the greater weight of the evidence indicates that excavation of the pond will have no impact on the results of groundwater flow modeling and contaminants transport modeling introduced at the prior hearing in DOAH Case No. 95-0863. DEP appropriately referred Petitioner's other concerns about the pond to DEP's Submerged Lands and Environmental Resources Program. Neither the original permit nor the instant Permit requires an anti-degradation study. Such studies are required only in cases involving a direct discharge to surface waters. In this case, the AWT facility will not result in a surface water discharge. During the meeting on January 18, 2001, Mr. May acknowledged that ambient monitoring data showed elevated levels of hydrocarbons and nutrients. The elevated hydrocarbons may be caused by traffic on the road and at the airport located near the absorption beds. The elevated nutrient levels can only be attributed to animals. As stated above, the AWT facility is not operational; therefore, the elevated levels of hydrocarbons and nutrients are not the result of the AWT facility. On March 30, 2001, DEP issued its Notice of Intent to Issue the Permit to RVU. The Intent to Issue indicates that RVU is the applicant for an application filed by SGI Utility, LLC, and RVU. The Permit lists RVU and SGI Utility, LLC, as co- permittees. If PSC approves the transfer of RVU's certificate to SGI Utility, LLC, DEP will transfer the Permit to SGI Utility, LLC. Until then, DEP will issue the Permit in the name of both entities. The Permit sets forth requirements for continued ambient and groundwater monitoring. These requirements, like the ones in the original permit, are sufficient to provide reasonable assurances that operation of the AWT facility will comply with Chapter 62-620, Florida Administrative Code. Under cover of a letter dated May 22, 2001, Mr. Wilder provided DEP with proof that the Notice of Intent to Issue had been published in the Apalachicola Times on April 12, 2001. Mr. Wilder signed the letter as treasurer of RVU. The published notice indicates that DEP intends to issue the Permit to RVU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That DEP enter a final order granting RVU and SGI Utility, LLC, a renewal of Permit No. FLA010069-002. DONE AND ENTERED this 28th day of February, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2002. COPIES FURNISHED: Thomas H. Adams Post Office Box 791 Eastpoint, Florida 32328 Craig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 L. Lee Williams, Jr., Esquire Williams, Gautier, Gwynn & DeLoach, P.A. 2010 Delta Boulevard Post Office Box 4128 Tallahassee, Florida 32315-4128 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about August 1, 1978, respondent Pilot Properties, Inc. filed an application with the Department of Environmental Regulation for the issuance of a construction permit to expand and enlarge a wastewater treatment facility from 18,000 gallons per day to 150,000 gallons per day. The DER issued its notice of intent to issue the permit on November 13, 1978, and the Perdido Key Development Association, Inc. timely requested a hearing on said notice. Over the objection of respondent Pilot Properties, Southwest Escambia Improvement Association, Inc. was joined as a party petitioner. The Perdido Key Development Association, Inc. subsequently withdrew as a petitioner. The remaining petitioner, Southwest Escambia Improvement Association, Inc. is comprised of members who reside on, own property on or have a business interest in Perdido Key. Among its purpose are the improvement of the Perdido Key community and the protection of the environment. The members of the Association utilize Old River for recreational and commercial purposes. The proposed expanded facility is designed to serve cluster homes and condominium complexes on Perdido Key, for a total of approximately 428 units. It will utilize a contact stabilization process whereby raw sewage enters the plant from the individual units, receives treatment and then the effluent is discharged evenly through a spreader or equalizer into two percolation ponds continuing approximately 54,000 square feet. The facility is designed to remove 95 percent of B. O. D. and suspended solids. The plant is not designed to remove nutrients. The percolation ponds serve as a disposal device, and not a treatment device. The ponds are to be constructed at an elevation of six feet. Considering fluctuation, the percolation pond bottoms will be separated from the groundwater by three feet. It is an accepted DER guideline to require a three foot separation between the groundwater and a percolation pond. The conditions of the proposed permit require that a three foot buffer zone be maintained between the bottom of the ponds and the maximum groundwater elevation. The nearest edge of the percolation pond will be located approximately 105 to 110 feet from the water line of Old River. The effluent will be discharged from the plant to the percolation pond and then to the groundwater, which ultimately flows in the direction of Old River. Groundwater monitoring wells are provided to measure the level of nitrogen. The soil on Perdido Key is course-type sand, with little clay or silt. It has a very rapid vertical percolation rate. According to the respondent's witness who qualified as an expert in ecology and botany, the process of adsorption, precipitation and denitrification which occurs as groundwater moves horizontally will prevent the degradation of Old River. This witness observed no suspicious levels of phosphate in samples from Old River. This witness observed no suspicious levels of phosphate in samples from Old River. He found the phosphate nitrate and fecal chloroform level of Old River comparable to that found in other clean water bodies. The petitioner's witness who qualified as an expert in aquatic ecology took samples of groundwater and sand from various areas on Perdido Key to analyze their nitrate and phosphate content. It was his conclusion that phosphate was not attenuated by the sands and that nutrients, particularly phosphate, are being discharged into Old River from sewage treatment facilities existing on Perdido Key. He observed a shifting of the composition of flora in Old River near the site of another existing sewage treatment facility which was not designed to remove nitrates or phosphates. However, the other existing facility was not shown to be comparable in the size of its percolation ponds, the pond elevation from the groundwater or in the manner of discharge form the plant to the percolation pond. This witness did agree that the spreading or equalizing method of discharging effluent from the plant to the 54,000 square feet of percolation ponds could delay the entrance of nutrients to Old River by as much as five months. The petitioner produced a witness who was skilled in the operation and maintenance of wastewater treatment plants similar in design to that proposed by respondent Pilot Properties. This witness testified that this type of facility required greater operating time due to difficulties encountered by hydraulic imbalances on clarifiers and the upward flow of discharge. The witness had no knowledge as to the future operating plans of the respondent. The two respondents presented witnesses who were qualified as experts in the areas of design and construction of sewage treatment systems. Both witnesses had reviewed the subject permit application and were of the opinion that if the proposed plant is constructed as designed, it will meet the minimum treatment standards required by DER's statutes and rules. The application submitted by Pilot Properties was for the issuance of a construction permit. Among the conditions of the proposed issuance of such a construction permit is a requirement that the permitted obtain an operation permit sixty days prior to the expiration date of the construction permit. Prior to the issuance of an operating permit, the applicant must provide the Department of Environmental Regulation with four months of results of analysis and flow measurements. An operation permit is issued only to those facilities which are able to operate within the standards of DER's rules. If the plant does not properly operate, DER requires the necessary corrections and modifications to bring the plant into compliance. DER may also prohibit further hookups if the plant operates improperly.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to the Respondent Pilot Properties, Inc. the requested construction permit subject to the conditions contained in the Department's initial notice of intent to issue the permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day March of 1980. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Jacob Varn Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 T. Michael Patterson, Esquire 26 East Garden Street Pensacola, Florida 32501 Robert T. Fulton General Counsel Pilot Properties, Inc. 664 Cherry Street Winter Park, Florida 32789 William Hyde, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact ARCJ Land Investments, Inc. was issued a permit by DER to maintenance dredge 1320 cubic yards of bottom material waterward of mean high water (MHW) in a semi-circular area approximately 450 feet long and 40 to 100 feet wide, and to construct approximately 1650 square feet of along shore dock. The dredged depths will be 2.4 feet at mean low water (MLW) on the east side of the drainage ditch along the west portion of the project sloping to a 6.6 feet MLW on the east end of the project area. The dredged depth viII slope from 2.4 feet to 3.4 feet MLW from the west side of the drainage ditch along the west portion of the project area. (Exhibit 5). Petitioner is the record owner of the area to be dredged and of the upland spoil site disposal area. The waters involved are Class III waters. The dock to be constructed along the shoreline is some 235 feet long and 4 feet wide with a 20 foot by 30 foot platform on the easternmost end. Dredging will start at the face of the dock and the area will be dredged to a maximum depth of 4.5 feet MUD at the end nearest to the Intracoastal Waterway (ICW) and 2.4 feet MLW at the shallowest part alongside the dock. The depth will increase from the dock towards the ICW on a 3 to 1 slope. The dredging will provide access to the dock from the ICW with channels at both ends of the mangrove island located between the proposed dock and the ICW. No shoreline mangroves or black rush will be removed or destroyed by dredging or dock construction. Dredging will be accomplished by hydraulic dredge. Spoil will be pumped to a self-contained upland-like disposal site to prevent return to waters of the stage. Respondent will use a "mud cat" hydraulic dredge which provides better control of the suction head and which creates little turbidity. Turbidity control devices will be utilized to contain turbidity to the immediate project site both at the dredge site and at the spoil site overflow. Neither the dredging nor tee deck construction will cause long or short term water quality degradation. The 3 to 1 slope provided will improve tidal flushing of the area and deter siltatlon. The proposed dredge area is ecologically a low productive area comprising less than 0.7 acres on which only one 10-foot diameter marine grass patch was observed. The balance of the area to be dredged is primarily sugar sand with two depressions between the mangrove island and the shore in which silt and clay sediments have settled. Bottom grab samples showed that for the most part the macro benthic infauna is primarily a detritus feeding worm community. No specimens of commercial species of bivalve clams were collected or observed. No quantitative measurements of the biomass of the benthic organisms in the dredged area were taken, however, from the evidence presented, it is an area of low productivity. Oysters were observed attached to the mangrove roots on the lee side of the mangrove island, but few were observed on the side adjacent to the ICW. No oyster beds were observed in the area to be dredged. Small fish observed in the area to be dredged consisted of bay anchovies, sand brim and mullet. Since very few bottom grasses grow in the project area, no sanctuary for juvenile fishes here exists. Under these conditions few fish would be expected to inhabit this area and the evidence presented confirms this conclusion. While removal of the dredged material will perforce remove those benthic organisms living n this soil layer, little other change will result and recolonization of the area will soon take place. Installation of the piers will provide facilities suitable for shellfish to attach thereto and this, in turn, will attract additional species of fish. As a result, no discernible reduction in the productivity of the area will ensue from the proposed project. Manatees are frequently seen in Hatchett Creek which opens to the ICW across the channel from the proposed site. No evidence was presented that manatees frequent the project area. To the contrary, the evidence presented is that there is now insufficient depth at the project site for the manatees. Furthermore, the paucity of grasses for feeding makes the area an unlikely one in which manatees would congregate. Construction of the proposed dock will not attract additional manatees to the area nor will it materially increase the boat traffic in the ICW or increase the risk of collision between boats and manatees. Several witnesses testified that the proposed project would be contrary to the City of Venice's Comprehensive Plan; however, the excerpts from the Plan which were read into evidence failed to establish the objectives of this Plan differ from the objectives of Chapter 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. No facilities are proposed for installation on the dock which would make it suitable for commercial vessels. No electricity, water or sewage facilities are being offered and no accommodations are being provided to attract other than small transient boats to bring customers to Respondent's restaurant. Although this project was opposed by the City Council, the testimony of those witnesses presented at the hearing shows that a great number of people living in Venice support the project and believe that it wild help the area, benefit downtown business and assist the healing public. Some witnesses opposed the project because they opposed any damage to the ecology, however slight, and regardless of the public benefit to be derived from the project. Others opposed the project on the basis that additional facilities would introduce additional people to the area, and thereby reduce those residents' opportunity to live in an uncrowded area. In Public Notice issued jointly by DER and U.S. Army Corps of Engineers advising interested parties of the dredge and fill permit here involved, the notice provided that the comment period ends April 4, 1980. However, on 28 March 1980 ARCJ Land Investments, Inc. was issued a permit for this project. Thereafter, petitioner on 5 May 1980 was notified that the permit had been issued and that the issuance of the permit could be appealed within 15 days of notification. That appeal by Petitioner led to the same hearing that would have resulted had the objections of the Petitioner been received before the issuance of the permit. Rule 17-4.28(11)(d) , Florida Administrative Code, provides generally that every application for a permit shall be approved or denied within ninety days after receipt of the original application. This 90-day period would have passed before the time for comment given in the joint Public Notice. Respondent was required to issue or deny the permit before the time noticed for comment passed. Thereafter, when Petitioner's objections were received, construction under the permit was stayed pending this administrative hearing and the issuance of a final order by DER. The parties stipulated that if an official in the City Zoning Department were called, he would testify that construction of the dock would violate the City Zoning Ordinance.
The Issue Whether Bay North Corporation should be issued a permit to construct a domestic wastewater treatment and disposal system at Camp Weed, Franklin County, Florida, pursuant to Chapter 403, Florida Statutes.
Findings Of Fact On February 27, 1978, Lomax Smith, a builder and developer in Tallahassee, Florida, entered into an agreement with the Protestant Episcopal Church in the Diocese of Florida to purchase some 42 acres of real property and the improvements thereon known as "Camp Weed" which is located in Franklin County, Florida. The purchase price of the property was $725,000, with an earnest money deposit of $20,000, and closing of the transaction to be on or before July 1, 1978. At the time of purchase, eight dormitory and several accessory buildings were located on the property which utilized septic tanks for sewage disposal. An existing deep well is in the northwest portion of the property for a water supply. Smith proposed to develop the property by the sale of lots, remodel some of the existing buildings, and construct new housing units. He employed the engineering firm of Broward Davis and Associates, Inc., Tallahassee, Florida, to prepare the necessary design plans and a state environmental permit application for a proposed domestic wastewater treatment plant to be located on the site. (Testimony of L. Smith, N. Smith, Exhibits 12, 13) On September 6, 1978, Smith filed an application with Respondent Department of Environmental Regulation (DER) for a permit to construct the sewage treatment plant (STP) at Camp Weed. He signed the application as owner of the property although he had not closed the purchase transaction nor acquired legal title at that time. The application and supporting plans were reviewed in the Northwest District Office of the Department of Environmental Regulation after site investigation, and it was determined that construction of the facility would be in accordance with applicable laws and regulations. A construction permit was issued to Smith for the STP on October 10, 1978, subject to certain specified conditions attached to the permit. Notification of the permit issuance was not preceded by a notice of intent to grant the permit, nor were any third parties advised of its issuance. Petitioners St. Teresa Dock Association, Inc. (then St. Teresa Dock Association) and H.S. Oven first learned of the permit issuance when their counsel was informed by Smith's counsel on November 3, 1978, that the permit had been issued. Petitioners thereafter on November 17 filed a petition for hearing with DER. (Testimony of L. Smith, Huff, Exhibits 1, 4-5, 8) Camp Weed is bounded on the north by U.S. Highway 98 and on the south by the Gulf of Mexico. The planned site for the STP is in the northeast corner of the tract which is some twelve feet above mean sea level and approximately 950 feet from the shoreline. The elevation of the property on the northwestern side is about 24 feet and is five feet in the middle. The land slopes generally toward the middle area and drains in a southerly direction to the gulf. The subdivision of St. Teresa where Petitioners' members own summer homes is located immediately west of Camp Weed. The members of the St. Teresa Dock Association, Inc., and Petitioner Hamilton S. Oven use the beach and gulf waters for boating, fishing, and other recreational purposes. About a dozen shallow wells in the St. Teresa subdivision provide drinking water for the residents. They are located over 1700 feet southwest from the site of the proposed STP. There are two ponds north of the St. Teresa area adjacent to U.S. Highway 98. An artesian well is located in the gulf about 25 feet south of the Camp Weed property. (Testimony of Huff, N. Smith, Oven, Sensabaugh, Exhibits 2,7, 9-11, 22, 24) The proposed plant is designed to provide sewage treatment for 132 housing units containing an estimated population of 3 persons per unit. A gravity flow collection system to a pumping station will produce a peak influent rate of 29,700 gallons per day with an estimated biological oxygen demand (BOD) loading of 49.6 pounds per day. A basket strainer on the influent line will remove trash. Plant operation will involve the use of aeration tanks, clarifier, chlorination, sand filter and clear well for discharge to a percolation pond. A polishing pond was originally planned, but was deleted at the suggestion of the DER because it performs the same function as the proposed sand filter. Two percolation ponds for alternate use will be construed so that the pond bottom is twelve feet above sea level. A soil test revealed that a sand layer extends under the shallow surface top soil to a depth of approximately 10 feet before reaching the shallow ground water table and that the effluent will percolate through the sand at the rate of one inch per minute. A five foot soil boring by DER failed to encounter ground water at that level and show that rate of percolation through the sand would be acceptable. The ground water table is subject to an unknown variance indepth during the wet and dry seasons of the year depending on the amount of rainfall. Although tide fluctuations may also have some effect on depth of the ground water table, the tide most likely will be of minimum influence due to the distance of the plant site from the gulf. Percolation of at least three feet through sand before reaching ground water is sufficient to meet DER policy requirements. (Testimony of Huff, N. Smith, Bishop, Exhibits 1, 3, 16-17). Based on the design of the STP, it is predicted by applicant's design engineer that there will be at least 90 percent removal of pollutants after chlorination and prior to passage of the effluent through the sand filter. The engineer predicts that after such filtration, there will be approximately 95 percent removal prior to percolation and that the effluent will then be pure enough to use as drinking water. Further purification will take place during the percolation process. The DER District Supervisor of Domestic Wastewater Permitting, who also is a professional engineer, substantially agrees with those predictions. Actual results of the treatment process can be determined, however, only after tests from monitoring wells are made during actual trial operations of the plant. It is further agreed by those experts that the average chlorine residual content in the effluent will be 0.5 parts per million. The DER supervisor therefore is of the opinion that, if the STP is properly operated, the processed effluent will not degrade ground waters, not adversely affect the wells in the St. Teresa Community or the waters of the gulf. After percolation, there is further dilution and ultimately the ground water which reaches the gulf in eight to ten days will be in a purer form than prior to introduction of the effluent. Although a twenty-year storm criterion was applied in the design of the percolation ponds, a catastrophic storm such as a hurricane was not taken into consideration since it would not be economically feasible to design for such an effect and, in any event, super dilution caused by such a storm would negate the possibility of water quality degradation. (Testimony of Huff, N. Smith, Exhibit 1) The buildup of sludge in the plant's holding tank will require removal about once a year when the plant is in full operation. The applicant will employ a certified individual to operate the plant and to remove sludge periodically to an appropriate place for disposal in an authorized manner. DER regards sludge disposal to be a matter for determination at the time application is made for an operating permit. (Testimony of Huff, L. Smith, McNeill, N. Smith, Exhibit 1) The applicant estimates that the construction of the plant and collection system will cost approximately $1,000 per housing unit for a total of $132,000. It is planned to recover this cost on the sale of lots. A condition of such purchases will be that the sewage system and treatment plant will be operated by a home owners association which is to be activated in the near future. Maintenance cost of the sewage plant will be shared by the individual members. Approximately twenty or twenty-five members are required for economical operation of the plant. (Testimony of N. Smith, L. Smith) The county zoning classification for the Camp Weed area is currently the subject of litigation by the applicant in the Franklin County Circuit Court and the result of that litigation as to permitted density of housing will determine the amount of units to be constructed by the applicant. In any event, if the applicant does not secure a county building permit, any DER construction permit would expire at the termination of the time granted therefor. (Testimony of L. Smith, Huff, Exhibit 24) At the time Intervenor Lomax Smith signed the permit application, Bay North Corporation had not been formed. It was incorporated in November, 1978, in order that Smith could obtain financing to complete the property purchase. The transaction was closed November 6, 1978, and a warranty deed to the property was issued to Bay North Corporation by the Episcopal Church in the Diocese of Florida, Inc. The deed was recorded in the public records of Franklin County on November 7, 1978. Lomax Smith is the president and principal stockholder of Bay North Corporation. Promissory notes secured by mortgages to the Southern Bank of Tallahassee and the Episcopal Diocese of Florida in the amounts of $350,000 and $362,500 respectively, were executed by Bay North Corporation on the same date. Pursuant to a request to DER from Lomax Smith on May 15, 1979, the Northwest District DER Office, on June 29, 1979, purported to transfer the permit to Bay North Corporation and extend the expiration date to September 30, 1980. (Testimony of L. Smith, Huff, Exhibits 6, 14-15, 21) The construction permit issued in October, 1978, was subject to standard and special conditions, including the requirement that the permit holder comply with county and municipal regulations prior to construction. They provided that monthly reports be furnished to the DER prior to issuance of an operation permit setting forth wastewater characteristics during a trial period of plant operation. They also required that the facility meet the treatment requirements contained in Chapter 17-3, F.A.C., including a 90 percent reduction in BOD and suspended solids based on concentration of the influent entering the plant. The conditions further provide that at the time of application for an operation permit, it must be shown that a certified operator under Chapter 17- 16, F.A.C., is retained, together with a copy of any contract for contract operation of the facility. Additionally, the conditions require that two monitoring wells be established upstream and downstream of the ponds and that quarterly ground water samples be analyzed and reported to DER. A further condition provides that a three-foot buffer zone must be maintained between the bottom of the percolation ponds and the maximum elevation of the ground water. (Exhibit 8)
Recommendation That the Department of Environmental Regulation issue the requested permit to Bay North Corporation, subject to the conditions attached to the permit issued on October 10, 1978. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of November, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: George E. Lewis, II, Esq. 316 East Park Avenue Tallahassee, FL 32303 William L. Hyde, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Ben H. Wilkinson, Esq. Pennington, Wilkinson, Gary and Dunlap Post Office Box 3875 Tallahassee, FL 32303 Alfred O. Shuler, Esq. Post Office Box 850 Apalachicola, FL 32320
The Issue Is Petitioner entitled to a surface water permit modification without a maintenance requirement? Is Petitioner entitled to remove an 18-inch culvert which is required to remain in place by permit modification? Does the Division of Administrative Hearings (Division) have jurisdiction to grant the relief sought in this proceeding?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is a corporation existing under the laws of the State of Florida that is in the business of, among other things, the production of citrus. Respondent is the agency of the State of Florida with the power and duty to exercise regulatory jurisdiction over administration and enforcement of surface water management systems pursuant to the provisions of Part IV, Chapter 373, Florida Statutes, and Chapter 40D-4, Florida Administrative Code, within its defined area. Sometime after Petitioner had been granted the initial surface water permit, Respondent began to receive complaints of flooding from property owners adjacent to Petitioner's property. Respondent determined that there was a mistake in the original design due to Petitioner's engineer having stated that there was no off-site flow of water into Petitioner's grove. Respondent's engineer later noted off-site in-flows of water to Petitioner's property which originated at the northeast corner of Petitioner's property. In August 1990, to correct this problem, Petitioner's engineer (Tim L. Martin of Wiles and Associates) requested a modification of Permit No. 404628.01 by proposing that an 18-inch culvert be placed in the northeast corner of Petitioner's property to address 200 acres of off-site flows. Respondent approved this modification to the original permit and the 18-inch culvert was installed. During 1995 Respondent received complaints of flooding from Richard and Janet Harvin, property owners adjacent to Petitioner's property. To address the Harvins' drainage concerns, Dino Ricciardi, an engineer with the United States Department of Agriculture Natural Resource Conservation Service, recommended a spillway. Ricciardi estimated the off-site drainage area to be 400 acres plus or minus 20 per cent. This estimation was twice the amount estimated by Petitioner's engineer at the time of the permit modification permitting the installation of the 18-inch culvert. By letter dated July 28, 1995, Respondent advised Petitioner that the existing 18-inch culvert authorized by the permit modification may be undersized and requested Petitioner's presence at a meeting in Venice, Florida, to discuss concerns of flooding of adjacent properties. By letter dated March 25, 1996, Respondent provided Petitioner with a summary of items for consideration by the parties at the meeting on March 29, 1996, when developing corrective actions for the drainage resolution plan. By letter dated April 16, 1996, Respondent admonished Petitioner for its failure to comply with agreed-upon time frames for providing information concerning a structure at the northeast corner of Petitioner's property. On April 23, 1996, Petitioner's engineer, Jerry Bowden of Kelley and Bowden, Inc., responded to Respondent's letter of April 16, 1996, with a proposal to install a 42-inch culvert with a 54-inch riser. A drawing in this proposal indicated that the existing 18-inch culvert would be removed and a 42-inch culvert with a 54-inch riser would be installed. This drawing shows the 42-inch culvert to be entirely on Petitioner's property. Jerry Bowden estimated the pre-development basin relevant to flows through the proposed 42-inch culvert at 550 acres. Jerry Bowden also stated that the upland properties drained included the Lowe property and a smattering of other properties, including a couple of acres or so of the Harvin property. On May 23, 1996, Petitioner submitted plans attached to Respondent's proposed remedial action plan which indicated that the 18-inch culvert would be removed and a spillway constructed on property located north and northeast of Petitioner's property. By June 1996 Respondent had worked out a remedial action plan to address the concerns of all parties. The plan provided for the construction of a spillway at the northeast corner of Petitioner's property and other structures that allowed the flows to pass through Petitioner's property. The remedial action plan also provided for the construction of out-flow structures at the southwest corner of Petitioner's property that were sufficient to compensate for inflows of the open spillway. The remedial action plan was approved by James Guida, Director of Respondent's Venice Regulation Department. Petitioner and its western grove owner neighbors, the Harrisons, entered into an easement which allowed Respondent to enter the Harrison's land for the construction of the remedial action plan. By letter dated July 6, 1996, Janet Harvin, a property owner that would be affected by the remedial action plan advised Petitioner as follows: You have my permission to go on our property to do the work that Southwest Fla. Water Management approved, on condition that you make sure that we have received notification (2) two days ahead of time so that we may have our cows moved from that pasture. I also would like a representative (Mitch Malone) of SWFWMD and my husband or myself present at the time of the work. We will be responsible for taking the fence down and putting it back up. (Emphasis furnished) Construction on the remedial action plan began sometime in September or October 1996. By letter dated October 16, 1996, Respondent urged Petitioner to complete work on the remedial action plan noting that neighbors were complaining of flooding. Respondent demanded that Petitioner provide a completion date of October 25, 1996. By letter dated October 30, 1996, Jerry Bowden proposed leaving the existing 18-inch culvert and installing a 36-inch culvert with a 42-inch riser in place of the 42-inch culvert with a 54-inch riser. These two culverts would replace the spillway proposed in the remedial action plan. By letter dated November 1, 1996, Respondent advised Petitioner that Respondent would have no objections to Petitioner's proposal provided Petitioner could show that the 36-inch culvert and the 18-inch culvert would have an equal or greater conveyance capacity to that of the spillway. The Respondent also requested detail on a plan or section view drawing to show the scope of the work and calculations or pipe capacity charts to show adequate capacity to handle peak rates of run-off. Respondent assured Petitioner that it would expedite its review of this material. After the November 1, 1996, letter, there was no further contact between Respondent and Petitioner concerning this matter prior to Petitioner's installing the 42-inch culvert. On November 19, 1996, the Harvins discovered that the 42-inch culvert with the 54-inch riser had been installed on their property by Petitioner's engineer, Jerry Bowden. Jerry Bowden knew prior to installing the 42-inch culvert that the culvert could not be installed entirely on Petitioner's property. While the Harvins had given Petitioner permission to go onto their property for certain work approved by Respondent set- out in the remedial action plan, the Harvins never gave Petitioner express or implied consent for the installation of the 42-inch culvert on their property before or after its installation. In fact, Janet Harvin swore out a trespass complaint against Ed Safron, Petitioner's president. Petitioner did not receive prior approval from the Respondent before installing the 42-inch culvert with the 54-inch riser on the Harvins' property. Based on his calculation of the watershed area, Jerry Bowden was of the opinion that the 42-inch culvert was sufficient to handle the off-site flows without the aid of the 18-inch culvert. However, Bowden testified there were other studies that had not been performed that could possibly produce data that would change his opinion that the i8-inch culvert was not needed to handle the off-site flows. On December 10, 1996, Petitioner applied for a letter modification of its permit for the 42-inch culvert it had previously installed on the Harvins' property without approval of either Respondent or the Harvins. This letter application described the project for which permitting was sought by referring to two previous letters dated April 23, 1996, and November 12, 1996. It was indicated in the November 12, 1996, letter that the 18-inch culvert would remain in-place unless at a later date conditions warranted its removal. Subsequent to this letter application, Respondent requested information from Petitioner concerning the maintenance issue. Petitioner did not respond to this request. By letter dated January 13, 1997, the Harvins notified Respondent that as a result of the construction of the 42-inch culvert rather than the spillway and as a result of Petitioner's failure to comply with the conditions in their letter of July 5, 1996, the Harvins would not grant Petitioner blanket permission for maintenance of the structure which Petitioner placed on their property without permission. However, the Harvins did indicate that they would allow maintenance on a case- by-case basis. By letter dated February 6, 1997, Janet Harvin advised Petitioner as follows: This letter is to revoke any and all permission that you could possibly think you have or anyone connected with you could have now, in the past, or in the future, come on our property without explicit permission from my husband or myself. On December 12, 1997, Petitioner issued the letter modification challenged herein which authorized the 42-inch culvert and required that the 18-inch culvert remain in place. The letter modification also placed the burden of maintenance of the system on Petitioner. There is insufficient evidence to show that the 42-inch culvert in combination with the 18-inch culvert is generating an excessive amount of off-site in-flow onto Petitioner's property or that the off-site in-flow onto Petitioner's property has resulted in damage to Petitioner's property or to Petitioner's citrus grove on that property, notwithstanding the testimonies of Edwood Safron or John Douglas to the contrary. Respondent's staff testified that based on their walking the watershed in December 1998, it appears that the watershed that drains to the northeast corner of Petitioner's property is between 300 and 350 acres and that the 42-inch culvert would be adequate from a conveyance standpoint. However, since the Harvins are insisting that the 18-inch culvert remain in place if there is going to be some type of agreement for Petitioner to go onto the Harvins' property to maintain the system, it is necessary that further studies be completed to determine more accurately the need for the 18-inch culvert. On November 23, 1998, Respondent invited Petitioner to apply for a permit modification if it had an expert who could state that the system minus the 18-inch culvert met rule criteria. On December 28, 1998, Petitioner filed a Modification of Permit by Letter with Respondent. There is insufficient evidence to show that the Harvins or any other upstream adjoining landowner had engaged in any unpermitted self-help drainage or that the Harvins or any other upstream adjoining landowner had materially diverted surface drainage onto Petitioner's property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order denying the requested modification. DONE AND ENTERED this 23rd day of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1999. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston, General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 J. Michael Rooney, Esquire Post Office Box 510400 Punta Gorda, Florida 33951-0400 Patricia J. Hakes, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether the applicant is entitled to a permit for the construction of a wastewater treatment facility and associated reuse/land application system (AWT).
Findings Of Fact The applicant proposes to develop a 58-acre parcel of land located within a 100-acre commercial area on the western half of St. George Island, Franklin County, in the vicinity of Nick's Hole. The proposed development will consist of a mixture of hotel rooms, a recreational complex, restaurant facilities, and retail space. The wastewater facility will be located in an area specifically designated under the 1977 Development Order for resort support facilities. The applicant proposes to construct a 30,000 gallons per day (gpd) domestic wastewater treatment facility expandable to 90,000 gpd to serve the proposed development, with reclaimed water to be discharged through absorption cells, constituting a reuse/land application system. The entire facility constitutes an advanced wastewater treatment facility (AWT). The proposed project site is bordered on the west by airport property. West of the airport is property owned by the State under the C.A.R.L. Program, bordering Nick's Hole. The Gulf of Mexico borders the southern portion of the Resort Village site, and an Apalachicola Bay wetlands system (a/k/a "the marsh") borders the northern portion of the Resort Village site. The proposed wastewater treatment plant will be located on the north side of Leisure Lane. Apalachicola Bay is designated an Outstanding Florida Water (OFW), which is the highest classification for environmental protection purposes. It is also a Class II shellfish harvesting water and an acquatic preserve. It is a National Estuarine Research Reserve and an International Biosphere Reserve. The Apalachicola River is the most important portion of the Apalachicola Bay ecosystem, followed by East Bay, and then Nick's Hole. The Apalachicola Bay and the Apalachicola River System are designated by the Northwest Florida Water Management District as the highest priority watershed under the Surface Water Improvement and Management (SWIM) program. Apalachicola Bay is one of the most productive estuarine systems in the northern hemisphere, and is recognized worldwide as an exceptional natural resource area. The introduction of too many nutrients into the Apalachicola Bay System could destroy this productivity. Nick's Hole is a small lagoon surrounded by extensive productive salt marsh and seagrass beds. Nick's Hole and the northern wetlands are major spawning and nursery areas for shrimp, oysters, fin fish and blue crabs. These areas are recognized as some of the most environmentally sensitive and productive nursery habitats in the Apalachicola River basin. Scientific studies conclude that drainage leading into Nick's Hole and the northern wetlands should be protected against nutrients or contaminants associated with sewage wastewater in order to protect the productivity of the area and ecological condition of the Bay System. Development of the subject property creates a potential for introduction of nitrogen and phosphorous into Nick's Hole and Apalachicola Bay which might result in an increased production of phytoplankton. Due to the proximity of Nick's Hole and the northern tidal wetlands to the absorption fields, there also are concerns about the potential for direct flow into surface waters flowing into Nick's Hole and influx of effluent from the groundwater. Hypereutrophication (quick aging) of all the waterbodies as a result of nutrient loading is another concern. Groundwater degradation due to nutrient loading by the project and transmigration of effluent and specific nutrients are of utmost concern with regard to this project because the ecosystem in the vicinity of St. George Island is unique and extremely sensitive. Nick's Hole is the most productive area for its size in the entire Bay System, has limited flushing, and is a major drainage system for St. George Island. The marsh system to the north of the plant is among the richest on the island. Barrier islands, such as St. George Island, present unusual environmental problems, primarily because they are subject to extreme wave action during hurricanes, because there is little land to treat waste and any nutrients will eventually wind up in the surrounding waters, and because the tidal creeks have limited flushing capabilities. The parties' disputes center around whether or not there will be ponding under normal conditions or the 25 year flood event which would result in surface water runoff of effluent and proscribed nutrients and whether these conditions would result in groundwater contamination flowing into surrounding waters. The AWT will provide the highest level of treatment available for wastewater. The reclaimed product will contain not more, on a permitted annual basis, then the following concentrations: 5 milligrams of biochemical oxygen demand (CBOD5) per liter, 5 milligrams of suspended solids per liter, 3 milligrams of total nitrogen per liter, and 1 milligram of total phosphorous per liter. This is commonly referred to as "the 5-5-3-1 criteria" and is codified in Section 403.086(4)(a) F.S. The highly treated effluent would be suitable for irrigation purposes. However, DEP Rule 62-610.451(1), F.A.C. prevents such uses in a public access area unless the capacity of the plant is 100,000 gpd or greater. The treated effluent leaving the AWT would be drinkable and of higher quality than many public drinking water supplies. DEP did not require an antidegradation analysis because the proposed facility does not directly discharge into surface waters. However, the applicant undertook an anticontaminant modelling as more fully described below. In order to ensure reliability, the AWT will be built in three phases, each having a 30,000 gpd capacity. While this will increase the applicant's cost, it will more importantly allow incremental DEP review prior to the second and third phase expansions so as to further ensure compliance with applicable DEP rules. To dispose of the treated effluent and provide additional treatment, the applicant proposes an absorption field land application system comprised of three subsurface absorption cells, subject to compliance with Part V, Chapter 62-610 F.A.C. Each of the subsurface absorption cells will be used on a rotating basis to balance the amount of effluent which will percolate into the groundwater at each location. That means one will operate after another on a flexible rotation schedule. The absorption cells have been located toward the south side (Gulf side) of the property to reduce the amount of effluent which flows toward, and ultimately reaches, Apalachicola Bay. Although the applicant has modified the locations of certain cells within the general south side location for all cells over the period of DEP's application review, this minor adjustment would have no significant impact upon the applicant's early data and calculations showing safety of ground and surface water runoff from the AWT. Also, recent data taking into account this minor relocation was submitted at formal hearing with the same result. See Finding of Fact 54. The cells total approximately five acres in size, which allows a net average effluent hydraulic loading rate of .41 gpd per square foot. This application rate is well below the application rate of 1.9 gpd per square foot allowed by DEP Rule 62-610.523(3) F.A.C. DEP does not normally require such small wastewater facilities to provide Class I reliability, however the Intent to Issue was not forthcoming until agency personnel were satisfied, initially, at least, that this applicant's AWT could meet Class I reliability. The evidence shows that Class I reliability will be obtained, but that the modifications agreed to by the applicant at formal hearing might enhance reliability. See, Findings of Fact 129-132. Additionally, the AWT facility will incorporate other design features not required by DEP rules designed to enhance environmental protections. Rule 62-610.550(3) F.A.C. provides that, "Absorption fields shall be designed and operated to preclude saturated ground conditions at the ground surface." See, Findings of Fact 114-121. Ponding has been observed after major storm events in isolated areas within Resort Village and nearby, particularly near Leisure Lane and the airport. However, several site inspections have revealed no ponding within the absorption cell areas. St. George Island received 5.23 inches of rain on October 2 and 3, 1992. A site inspection during this event revealed no ponding at or near where the absorption cells will be located. The closest standing water was observed 200-300 feet from the area. On August 14 and 15 1994, Tropical Storm Beryl dropped over 10.25 inches of rain on an area encompassing St. George Island. No ponding within the absorption cells area occurred during this storm event. (Note Finding of Fact 119: The applicant has assumed a 25-year-24 hour storm event would total ten inches of rain.) Hurricane/Tropical Storm Erin dropped 7.17 inches of rain on the site over a three day period ending August 4, 1995. The proposed areas for the plant as well as the absorption cells were dry. Competent witnesses in all fields presented by the applicant testified credibly that this site and AWT design promise high infiltration and low loading rates in generally homogeneous soils with a rapid permeability rate, that infiltration rates at the absorption cells will remain high, even under extremely wet conditions associated with major storm events, and that surface waters will dissipate quickly. In 1993, Richard A. Mortensen, P.E., a civil engineer, and Nicholas Andreyev P.E., an environmental engineer, directed a soil, hydrogeolgic and effluent disposal study and developed a groundwater monitoring plan for the project. On-site well drilling was conducted by a three-man team. A series of monitoring wells and piezometers were installed to measure groundwater levels, even through simple soil borings are all that are normally used for a system of this size. Richard Mortensen has overseen more than 70 similar projects and was onsite in May or June 1993. Petitioner's discomfort with the education, training and experience of the persons doing the actual physical borings, well- sampling, and pump tests for the applicant at this time and later as described below is immaterial in light of the explicit directions before, and review afterward, by Mr. Mortensen; the June 1993 presence of Ted Fussell, a registered water well contractor and licensed geologist who formerly worked with the Southwest Florida Water Management District as described in the testimony of Gary Volenec, P.E. and the deposition of Mr. Mortensen; repeated on-site oversight by Mr. Volenec, an environmental engineer specializing in wastewater concerns; and the fact that physically taking such measurements is highly technician-oriented work, not requiring exotic expertise. Soil tests showed horizontal permeability ranging from 74 to 151 feet per day. A shallow aquifer pump test showed a weighted average permeability of 156 feet per day. These are "high" permeability rates; the higher the permeability rates, the less "mounding" can be expected to occur. "Mounding" is defined as that permanent change of groundwater as a result of a continuous application of water. For purposes of modelling the groundwater flows in the initial hydrogeotechnical report, Messrs. Mortensen and Andreyev made conservative assumptions regarding the soil permeability and aquifer characteristics. Impacts to the groundwater were modeled by Mr. Andreyev, using a computer program called "MODFLOW" calibrated to be consistent with the site- specific data. Mr. Andreyev specializes in groundwater modelling. From 1986 to 1990, he and his firm have conducted over 500 hydrogeologic studies, including at least five studies on barrier islands. As found previously, St. George Island is a barrier island. Mr. Andreyev has written and published various groundwater and stormwater computer models, and has taught groundwater and stormwater seminars to DEP and water management district personnel. MODFLOW is a three dimensional finite difference of groundwater flow computer model published by the U.S. Geological Survey, and recognized acceptable by DEP. Mr. Andreyev is familiar with, and skilled in, operating the MODFLOW program, having used it in excess of 400 times. That Mr. Andreyev provided mixed fact and opinion testimony without being formally tendered as an expert in any field is not controlling. Most of his testimony was rendered without objection. Some of his testimony is supported by learned treatises recognized by Petitioners' experts and admitted without objection. Clearly, this record demonstrates that he has, by knowledge, skill, experience, training, and education, expertise in hydrogeology and groundwater and contaminant modelling on barrier islands, which can assist the trier of fact in understanding the evidence or determining facts in issue. Moreover, he testified concerning personal knowledge of the facts underlying any opinion testimony, and what he perceived and inferred could not have been accurately expressed except in the form of an opinion. The computer modelling simulated two years of continuous application of effluent to ensure the "steady state" or equilibrium point of any potential groundwater mound would be reached. Continuous application beyond two years would not cause any further mounding effects. Messrs. Mortensen and Andreyev concluded that if the recommended cell rotation were followed, loading 90,000 gpd would never create a groundwater mound over +4.2 feet MSL, and typically would result in less than +3.2 feet MSL after resting. In contrast, the absorption cells would have a minimum ground elevation of 5.5 NGVD, as required by DEP. After the June 1993 study, slight changes in absorption cell locations were made so as to further improve their performance and/or better utilize site space, but as found previously, these relocations do not significantly change the MODFLOW results. See below. Contrary to Petitioner's assertions, the more credible competent evidence weighs in favor of a finding that normal tidal influences will not significantly impact inland groundwater levels at the site. Further groundwater studies using additional monitoring wells were conducted in October and November 1993 to better predict groundwater movement in response to requests by DEP during the application review. During the monitoring period, there were three rainfall events, including one with a total measured rainfall of 4.5 inches. These studies indicated there is a subsurface groundwater ridge running east-west, slightly to the Bay side of the center of the island. Groundwater on the north side of this ridge will tend to flow towards the Bay, while groundwater on the south side will tend to flow towards the Gulf. These studies also revealed a north-south ridge or high point in the groundwater between the subject property and Nick's Hole in the vicinity of the airport. Water which percolates into the ground south of the east-west ridge will tend to move towards the Gulf, while water placed on the east side of the north-south ridge will tend to move away from Nick's Hole. The absorption cells have been located towards the Gulf and east of the airport in order to minimize any flows towards Apalachicola Bay and Nick's Hole. The 22 wells were monitored on 18 separate days. On three of the 18 days, the groundwater elevations for several of the wells reported in the Applicant's Exhibit No. 1(c) were alleged by Petitioners to be slightly higher or slightly lower than the field notes would indicate. However, no single well had a discrepancy for more than two of the 18 days. In March 1994, another groundwater study, similar to the one performed in October and November of 1993, was performed by Messrs. Leitman and Volenec. The purpose of this study was to confirm the previous studies, and to gather additional data along the eastern portion of the site in fulfillment of DEP requests. The gathered data did not significantly deviate from the previous data. In 1995, immediately preceding the September formal hearing, a new MODFLOW analysis was performed by Mr. Andreyev. It was designed to be a more intensive and more accurate representation of field conditions. It eliminated some of the more conservative assumptions of the prior analyses and attempted to analyze all rainfall over a 25-30 year period. Under pre-development site conditions, the groundwater mound or ridge is approximately 2.2 feet NGVD. For this study, Mr. Andreyev incorporated the effects of the impervious surface areas of the stormwater retention ponds and the revised absorption cell locations, along with other factors. Surrounding property was also modeled in order to eliminate "boundary effects". The presence of the stormwater retention ponds did not significantly affect the results of the model. Consistent with the historical data, average annual rainfall was set at 55 inches, and evapotranspiration of 40 inches was assumed. Mounding is a long term phenomena, and the studies appropriately consider long term rainfall data. A calibrated soil net recharge rate of .0034 ft./day was incorporated into the model. The underground aquifer was modeled as a "two layer" system with the first layer extending from the surface to -10 feet NGVD. The second layer extends from -10 feet NGVD to -32 feet NGVD. Proper calibration of the model requires the use of these aquifer characteristics. Like the 1993 study, the recent 1995 study involved a two year model run in order to reach a steady groundwater state. This more precise study showed less mounding than the previous study. Under the 30,000 gpd scenario, the groundwater mound will rise to approximately 2.7 feet NGVD. With 90,000 gpd effluent, the groundwater mound will rise to approximately 4.2 feet NGVD. The mounding will not affect the operation of the absorption cells. Under the 30,000 gpd scenario, 78 percent of the effluent will flow towards the Gulf, 16 percent will flow towards Apalachicola Bay, and six percent will flow towards Nick's Hole. Under the 90,000 gpd scenario, 74 percent of the effluent will flow towards the Gulf, 18 percent will flow towards the Bay, and 8 percent will flow towards Nick's Hole. Petitioners' contention that there is also a groundwater ridge under the dunes which will inhibit the flow of groundwater towards the Gulf is based on an assumption that groundwater elevations generally follow topographic elevations. While this may be true with respect to mainland aquifers, it is not necessarily true on barrier islands which tend to be highest at the center of the island and decrease in proportional relationships to the distance from the shoreline. With regard to this issue, the undersigned finds the individuals with greater barrier island experience to have provided testimony more consistent with published authorities and are otherwise more persuasive. The applicant's groundwater modelling is found to be accurate and adequate. In response to concerns of DEP staff and employees of the Northwest Florida Water Management District, Mr. Andreyev performed a contaminant transport analysis to estimate the long term migration and concentration of nitrogen (nitrate), phosphorous and biological oxygen demand (BOD) resulting from the AWT. Mr. Andreyev used a three dimensional modelling program known as "MT3D" for this purpose. MT3D uses flow in three dimensions consistent with the MODFLOW modelling. This type of modelling is commonly used in connection with leachate from landfills, gasoline spills, and other solvent spills, for precise tracking of harmful contaminants. Its level of precision is not normally required for AWT permitting. Rather, it is normally assumed that with proper treatment and appropriate set-backs, effluent disposal will not have any harmful effects. Accurate contaminant transport modelling depends primarily upon accurate groundwater modelling. Contaminant transport modelling will be inaccurate if underlying groundwater modelling is inaccurate. Having determined that the applicant's groundwater modelling is accurate and adequate, the applicant's contaminant transport modelling is also deemed accurate. The governing parameters used in the applicant's contaminant transport model were: the estimated hydraulic flow field; the duration of loading (5 year intervals up to 30 years); the loading rates (30,000 gpd and 90,000 gpd); the source concentration of each constituent (1 mg/L phosphorous, 3 mg/L nitrogen, 5 mg/L BOD); a dispersion coefficient (20 ft transverse and 2 ft vertical); and retardation factors which are dependant upon the contaminant. The computer model conservatively assumed all the nitrogen was nitrate, when in fact some portion may be less mobile. The dispersion coefficient was appropriate for the soil conditions prevalent at the site. The retardation factors chosen were selected as low-end estimates for the nutrients and soil conditions applicable, and thus provide conservative (worst case) estimates of the amount, if any, of nitrogen, phosphorus and BOD which could potentially reach the Gulf and Apalachicola Bay. Because of this conservatism, it is reasonable to infer that the actual contamination level will be less than was modelled. However, according to the model, the following loading rates will apply. After 25 to 30 years of plant operation at 30,000 gpd, the concentrations reaching the Gulf in mg/liter for BOD, nitrogen, and phosphorous, will be, under a worst case scenario, 3.4, 1.4 and .28, respectively. The concentrations in mg/liter reaching Apalachicola Bay will be, at most, .8, .5, and 0 respectively for BOD, nitrogen and phosphorous. No measurable level of these elements will reach Nick's Hole at 30,000 gpd even under the worst case assumptions. The quantity of nutrients reaching the Gulf after 25 to 30 years of plant operation, in lbs/yr, will be 242, 99, and 20 for BOD, nitrogen, and phosphorous, respectively. No more than 6.5 lbs of BOD, 7.3 lbs of nitrogen, and 0 lbs of phosphorous will reach Apalachicola Bay each year, after 25-30 years of plant operation at 30,000 gpd. No BOD, nitrogen or phosphorous will reach Nick's Hole at 30,000 gpd. At 90,000 gpd, after 25 to 30 years of plant operation, the concentrations reaching the Gulf, in a worst case scenario, will be no more than 4.2 mg/l BOD, 2.3 mg/l nitrogen, and .73 mg/l phosphorous. The concentrations reaching Apalachicola Bay after 25 to 30 years of plant operation will be no more than 2.3 mg/l BOD, 1.3 mg/l nitrogen and .03 mg/l of phosphorous. The concentrations in mg/liter reaching Nick's Hole will be no more than 1.1 BOD, .5 nitrogen and 0 phosphorous. At 90,000 gpd, the quantity reaching the Gulf after 25 to 30 years of plant operation, in lbs/yr, will be no more than 850, 466 and 147 for BOD, nitrogen and phosphorous. Similarly, no more than 113 lbs of BOD, 64 lbs of nitrogen and 1.5 lbs of phosphorous will reach Apalachicola Bay. No more than 24 lbs of BOD, 11 lbs of nitrogen and 0 lbs of phosphorous will reach Nick's Hole each year. For the small amount of nutrients that will eventually reach the Gulf of Mexico and Apalachicola By, the zone of discharge is dispersed over a wide area and will fluctuate with the tides. Randy Armstrong, a prior DEP Chief of Permitting, is currently a private sector biologist and environmental consultant. He relied in part on Mr. Andreyev's calculations. He testified without objection to performing further calculations of his own to figure tidal exchanges on a daily rather than annual basis. His testimony and calculations in Resort Village Exhibit 18-19 are accepted below. See Findings of Fact 91-102. The Apalachicola River discharges, on the average 16,150,000,000 gallons of water each day into the Apalachicola Bay. This daily discharge into Apalachicola Bay includes 53,876 lbs of BOD, 88,896 lbs of nitrogen, and 10,775 lbs of phosphorous. Daily tidal exchanges discharge 77,500,000 gallons of water per day into the 70 acre marsh area adjacent to and north of the subject property, and 98,800,000 gallons into Nick's Hole. For this 70 acre marsh area, daily loading of nutrients associated with the tidal exchange are 710 lbs of BOD, 433 lbs of nitrogen, and 32.3 lbs of phosphorous. For Nick's Hole, the daily loading of nutrients associated with the tidal exchange is 906.4 lbs of BOD, 552.07 lbs of nitrogen, and 41.2 lbs of phosphorous. Rainfall contributes 300,000 gallons of water to the 70 acre marsh area north of and adjacent to the subject property and 382,500 gallons to the 88 acre Nick's Hole area on an average daily basis. For the 70 acre marsh area north of and adjacent to the subject property, daily loading of nutrients associated with this rainfall are 2.75 lbs of BOD, 1.25 lbs of nitrogen, and .08 lbs of phosphorous. For Nick's Hole, the daily loading of nutrients associated with rainfall are 3.5 lbs of BOD, 1.59 lbs of nitrogen, and .1 lbs of phosphorous. After 30 years of plant operation, daily loading to the 70 acre marsh area north of and adjacent to the subject property from 30,000 gallons of effluent will be .02 lbs of BOD, .02 lbs of nitrogen, and 0 lbs of phosphorous, at most. There will be no nutrient loading of BOD, nitrogen or phosphorous into Nick's Hole or its surrounding marshes under the 30,000 gallon scenario. After 30 years of plant operation, daily loading to the 70 acre marsh area north of, and adjacent to, the subject property from 90,000 gallons of effluent will be .31 lbs of BOD, .18 lbs of nitrogen, and 0 lbs of phosphorous, at most. For Nick's Hole, and its surrounding marsh area daily loading will be at most .07 lbs of BOD, .03 lbs of nitrogen, and 0 lbs of phosphorous. The foregoing loadings comply with the antidegradation policy set forth in Rules 62-4.242, 62-302.300, and 62-302.700 F.A.C. The amount of nutrients resulting from either 30,000 or 90,000 gpd of plant operation is insignificant, relative to the amount of nutrients from the tidal exchange and rainfall. The small amount contributed by the plant will not be measurable or observable, and will not cause any degradation, quick aging, or excessive photoplankton production of Apalachicola Bay, Nick's Hole, or the Gulf of Mexico. Petitioners attacked the applicant's raw data, calculations, and modelling as inaccurate and/or unreliable. To the extent their witnesses focused upon additional tests that the applicant could have performed but which were neither required nor performed, these witnesses were not persuasive of the applicant's unreliability. Likewise, some minimal errors by the applicant in transposing raw data measurements are acknowledged, but it was not demonstrated that such errors significantly affected the reliability of the applicant's data or agency rule compliance. No other controlling inaccuracy in the applicant's data or methodology was established. Expert witnesses Strickland and Musgrove's contrary testimony is rejected as not proven, and accordingly, Dr. Livingston's conclusions based thereon are not persuasive. Petitioners' evidence regarding saturated ground conditions and problems with the land application system relate almost entirely to Cell A. As noted above, the applicant's witnesses have testified credibly and competently that all cells will perform as designed, even under extreme storm conditions. Since a rotational loading is contemplated, the performance of the cells is enhanced, but even if any single cell fails, the other two should be sufficient to keep the effluent below maximum rule standards. As noted above, some minor readjustments of cell location since early data was run would not substantially affect the validity of that data, as confirmed by the latest analysis. Mr. Andreyev ran his computer models without absorption cell A being utilized. He concluded that even if all the effluent were rotated among absorption Cells B and C, the system would still function as designed. Therefore, even if a problem were to arise with Cell A, it could be overcome by changing the rotation schedule, which is flexible, to reduce or eliminate effluent loading to Cell A. Mr. Andreyev's modelling accurately estimates the groundwater mounding impact created by loading both 30,000 gpd and 90,000 gpd of effluent into the absorption cells. Applying 30,000 gpd of treated effluent to the cells in addition to the annual rainfall will cause a groundwater mound with a maximum elevation of not more than 2.8 feet NGVD. Applying 90,000 gpd of treated effluent to the cells in addition to the annual rainfall will cause a groundwater mound with maximum elevation of not more than 4.5 feet NGVD. The foregoing elevations represent the maximum level of mounding, and in most areas the mounding is lower. The absorption cells will have a minimum ground elevation of 5.5 NGVD, as required by DEP. However, in the event that subsequent inspections at each construction phase reveal a need, the applicant would be able to comply with a higher minimum elevation if DEP were to require it. Since the maximum groundwater mound will be below the ground surface throughout the absorption cells, saturated ground conditions are precluded even when the maximum groundwater mounding occurs. DEP's concern, in interpreting its Rule 62-610.550(3) F.A.C., was whether the absorption cells would be saturated at the end of their respective resting periods. See, Findings of Fact 119-121. At the end of the resting period, the groundwater mound is below the maximum level. Due to rainfall, the absorption cells will temporarily become saturated during extreme storm events. However, this is a short term phenomenon and will not adversely affect operation of the absorption cells. The temporary saturation which occurs with intense storm events is not a problem. The rainwater places additional downward pressure on the effluent, which stays below the ground. Petitioners asserted that in order to provide reasonable assurances that this project is environmentally safe, the applicant must demonstrate that the absorption cells could cope with a 25 year storm event. Mr. Andreyev testified that in the course of hundreds of permit reviews, he has never been required by DEP to model the impact of a 25 year-24 hour-ten inch flood/storm event on top of the normal heavy saturation figures he had used in modelling for this project, which apparently is what the permit opponents were urging. Mr. Mortensen and Mr. Volenec confirmed that DEP had never requested such modelling for a 25 year flood event with regard to their prior projects either and that DEP had required no further assurances on this project beyond the data provided. Mr. Andreyev's experience was that this type of concern was addressed by DEP during stormwater permitting. The applicant's latest analysis takes the stormwater retention ponds into consideration. See Finding of Fact 54-56. The fact that DEP rejoined the applicant (within their joint proposed recommended order) in seeking to have the AWT permit issued, is suggestive that any stormwater concerns of the agency have been resolved by what their personnel perceived at formal hearing. In any case, DEP's concerns about the subsequent application for a stormwater retention permit should be addressed in that proceeding, not here. Victor Hultstrand, DEP's Supervisor of the Technical Services Section of Water Facilities, confirmed that the agency interprets Rule 62-610.550 (3) F.A.C. only to prohibit saturated ground conditions for average conditions, not short term conditions associated with infrequent major storm events. At one point, before the agency deemed the application complete, Mr. Hultstrand requested that the applicant work the 25 year storm event into its MODFLOW analysis. However, Mr. Hultstrand conceded that his request was intended to reassure himself personally and that there is no specific requirement in Rule 62-610.550 (3) F.A.C. for such a study. This interpretation of the rule is entitled to great weight and is accepted. Mr. Hultstrand was ultimately satisfied with the additional information provided prior to the application being deemed complete, without the superimposed 25 year storm data. Nonetheless, Mr. Andreyev went a little further by incorporating the rainfall during the latest MODFLOW modelling into his model. It ranged from four to ten inches in his model. He also incorporated the mass balance of water from all storms for 30 years. This figure was pulled from LANDAP, an acceptable source. He averaged the water for a year closest to recorded distribution and used that year's storm events. Therefore, his calculations do not represent a particular storm, but represent the cycle of rainfall on a long term basis, including all hurricanes, and all 25- and 100-year storms that have occurred on the island. The joint posthearing proposal suggests DEP is fully satisfied with the latest information. Rule 62-610.567 F.A.C., requires that "The land application site shall be designed to prevent the entrance of surface runoff. If necessary, berms shall be placed around the application area." The applicant has proposed to grade the site and to place berms around the cell boundaries in areas where the ground elevation drops below 6 feet NGVD. This will require a short berm in the corner of one absorption cell. The applicant has not specifically accounted for wave action under hurricane conditions, however, while it is conceivable that Cell A could experience run on with the berm and limited volumes of stormwater could run off the cells in extreme conditions, even during a 25 year storm event, if runoff somehow occurs from the absorption cells, no effluent would be present in such runoff. Rule 62-600(2)(c) F.A.C. actually addresses the 25 year storm event. It requires that: "The treatment plant structures essential for the purpose of treating, stabilizing, conveying, or holding incompletely treated waste and mechanical equipment shall be protected from physical damage by the 100 year flood. The treatment plant shall be designed to remain fully operational and accessible during the 25 year flood". According to FEMA maps for St. George Island, the proposed site for the plant is in an "A-9" zone, which has a 100 year flood elevation of 9 feet. In order to provide an extra margin of safety, the plant has been elevated so that the tops of the tanks will be between elevations 11.5 and 17.7. All electrical hardware, blowers, and other componentry have been elevated above the 25 year flood elevation. The applicant provided reasonable assurances that the AWT auxiliary generator will be sufficient to operate the plant's vital components during peak flow conditions. One of Petitioner's concerns addresses what will be done with the applicant's auxiliary generator in case of extreme weather events. Portability of this item enables it to be moved about the site to avoid any problems occasioned by such flood events, including ponding, should it occur. Otherwise, the applicant has several safe locations for storage of the generator, notably the fire station which is offsite. Failure of the applicant to limit its versatility by designating a permanent location for its portable generator does not defeat this application, nor does the absence of schematics of the inside of standard purchase items. The Intent to Issue calls for the presence of a certified Class C AWT operator monitoring the system with seven ground water monitoring wells and three surface water monitoring wells on a schedule established in the draft permit. The Northwest Florida Water Management District expressed concern regarding the number of hours that the plant operator would be on duty during weekends. At formal hearing, the applicant, through its principal, Ben Johnson, stipulated to accept a modification to DEP's draft permit to require that the applicant have a certified plant operator at the site six hours on each weekend day, six hours on three week days and one visit on each of the remaining two weekdays, thereby resolving this concern. This modification of the permit draft is acceptable to DEP. DEP and Northwest Florida Water Management District personnel expressed some concerns regarding the parameters in the Intent to Issue for monitoring groundwater and surface water near the plant and indicated that additional parameters should be added: total phosphorous (TP), phosphate (P04), total nitrogen (TN), total kjeldahl nitrogen (TKN), ammonia (NH3), nitrate (N02), and dissolved oxygen (DO). DO need only be sampled from the surface water monitoring stations. At formal hearing, the applicant, through its principal, Ben Johnson, stipulated to accept a modification to the draft permit to require the additional sampling.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a permit be issued as set forth in the Intent to Issue as drafted but further modified to provide that There will be a certified operator on site for six hours on each weekend day, for six hours on three weekdays, and for a visit on the remaining two weekdays; and The following will be added to the list of parameters to be sampled: total phosphorous (TP), phosphate (P04), total nitrogen (TN), total kjeldahl nitrogen (TKN), ammonia (NH3), nitrate (N02), and dissolved oxygen (DO). Dissolved oxygen (DO) will only be sampled from the surface water monitoring stations. DONE AND ENTERED this 16th day of January, 1996, in Tallahassee, Florida. ELLA JANE P. DAVIS, 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 16th day of January, 1996. APPENDIX TO RECOMMENDED ORDER CASE NOS. 95-0863, 95-0864, 95-865,95-0866,95-0867 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Applicant's and DEP's Joint PFOF: 1-107, 115-174, and 179-180 Generally accepted upon the whole of the evidence, not necessarily upon the cited passages or only upon the cited passages. Unnecessary, subordinate, and/or cumulative material has not been adopted. Interpersed conclusions of law and legal argumentation have been rejected. Preliminary matters will be found under "Preliminary Statement." Conclusions of Law will be found under "Conclusions of Law." 108-114, and 175-178 Considered and factored into competency and credibility analysis but otherwise rejected as subordinate and non-dispositive, and where appropriate, rejected as mere legal argumentation. Individual Petitioners' and Franklin County's Joint PFOF: 1-3, 5-6, 10-13, 14 Number 2, 15-16, 19-24, 26-27, 35-36, 39-40, 50, 76, 80 Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Interspersed conclusions of law and legal argumentation have been rejected. 4, 54, 81, 89-90 Accepted as modified to more accurately reflect the record as a whole. 74-75 Rejected as set forth in the recommended order. 7-9, 14 Number 1, 17-18, 25, 29-30, 41-44, 46-49, 51-53, 55-61, 64 Number 1, 63 after 64, 64 Number 2, 65-73, 77-78, 82-88, and 91-92 Rejected as out of context or otherwise contrary to the facts as found upon the greater weight of the credible evidence as a whole. In some instances also rejected as unnecessary, subordinate, or cumulative or because legal argumentation was included with the proposed facts. 28, 31-34, 37-38, 45, 62 Rejected as subordinate and non-dispositive, and where appropriate, rejected as mere legal argumentation. 79 Rejected as mere speculation and legal argumentation. COPIES FURNISHED: Samuel J. Morley, Esquire Karen D. Walker, Esquire HOLLAND & KNIGHT Post Office Drawer 810 Tallahassee, FL 32302 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 L. Lee Williams, Jr., Esquire MOORE, WILLIAMS, ET AL. Post Office Box 1169 Tallahassee, FL 32302 Alfred O. Shuler, Esquire SHULER & SHULER Post Office Box 850 Apalachicola, FL 32329 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue The issue in this case is whether the Variance Review and Advisory Committee and the Department of Health had just cause to disapprove Petitioner's application for a variance.
Findings Of Fact The Department of Health (DOH) is the agency responsible for oversight of the on-site sewage treatment and disposal systems program and the Variance Review and Advisory Committee which meets monthly to recommend agency action on variance requests pursuant to Chapter 381, Florida Statutes. In August 1999, Petitioner applied to the DOH for a second variance to extend a variance previously granted in June 1999, to use an existing septic system for six months. Petitioner's application for the second variance stated that county sewer would be available in 2001, and she would be required to hook into the sewer. Therefore, Petitioner wanted an extension to continue using the existing undersized septic system until the sewer was available. She also attached water usage records for June 1998 through July 1999, for her property. Petitioner owns the commercial property served by the septic system and located on Howland Boulevard in Deltona, Florida. The property consists of a strip mall with five offices and one restaurant. The property originally contained six office spaces in 1990, when Petitioner applied for a permit to install a septic system to handle the building's sewage flow. See Petitioner's Exhibit No. 1. Petitioner was granted a construction permit for the septic system on August 14, 1990, which contained the statement: "no food service operations permitted in this building." Prior to May 1999, Petitioner leased an office in her commercial property to Milagros Martinez to operate a sandwich shop. Ms. Martinez applied to DOH for approval to use Petitioner's existing septic system to handle her sandwich shop sewage, and was denied because of increased water use and septic system demands of a restaurant. Petitioner's septic system contains a 750-gallon tank with 162 square feet of drainfield. In order to handle the additional sewage generated by the sandwich shop, the Florida Administrative Code requires a 1350-gallon tank and a drainfield of 787 square feet. There is enough room on Petitioner's property to install a separate septic system to handle the sewage generated from the sandwich shop. Petitioner applied to DOH for her first variance in May 1999, requesting to utilize the septic system to handle the waste from the sandwich shop. Petitioner appeared before the DOH Variance Review and Advisory Committee in June 1999. The committee recommended, and DOH concurred, to approve the first variance with four provisos. See DOH Exhibit No. 2. The four provisos were: The applicant shall obtain and maintain an annual onsite sewage treatment and disposal system operating permit in accordance with subsection 64E-6.003(5), F.A.C. The owner shall maintain an annual contract with a licensed septic tank contractor to inspect and service the onsite sewage treatment and disposal system at least once per month or more frequently as necessary. This variance allows operation of the sandwich shop for no more than six months. During that six months, the applicant shall take all necessary steps to increase the capacity of the system to accommodate the additional 230-gallon sewage flow from the sandwich shop. At the end of the six months, the system shall be in compliance or the sandwich shop shall be closed and remain closed until compliance is achieved. The four provisos were additionally explained to Petitioner in a letter dated July 14, 1999, from Sharon Heber, Director of the DOH Environmental Health Division. See DOH Exhibit No. 1. Petitioner accepted the provisions of the first variance on July 20, 1999. See DOH Exhibit No. 4. Petitioner does not have a current annual on-site sewage treatment and disposal system operating permit as required by the first proviso. Petitioner did not contract with a licensed septic tank contractor to inspect and service her system at least once per month as required in the second proviso. Petitioner called a contractor to inspect her system four times in the six-month period since the first variance was granted. Within six months, Petitioner did not take the necessary steps to increase the capacity of her septic system to handle the additional flow as required by the third proviso of the first variance. The system is not in compliance and the sandwich shop is not closed as stated in the fourth proviso. In August 1999, Petitioner filed for a second variance requesting that the first variance be extended until year 2001. That is the date the county plans to install a sewer line on Howland Boulevard in Deltona, which will serve her commercial property. She submitted a letter from the Volusia County Public Works Service Center stating that the "sewer service is planned to be available sometime in the year 2001." See Petitioner's Exhibit No. 4. The Variance Review and Advisory Committee considered Petitioner's request at their September meeting. The variance committee unanimously denied Petitioner's request for a second variance. The Petitioner's system was not designed to handle an increased amount of sewage flow, and that it would eventually collapse or fail. The committee's approval of the first variance was to allow Petitioner adequate time to install the necessary septic system for the restaurant, and not put Petitioner in the position of telling her tenant she could not open her restaurant. See DOH Exhibit No. 5. When Petitioner's existing system fails, sewage will pond on the ground. The ponding fluid will consist of raw sewage. The leaking/ponding sewage may seep into the groundwater and then into drinking water aquifers. In the right conditions, this pollution can cause the spread of waterborne diseases such as typhoid and cholera, or viral infections, such as hepatitis A or polio.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order affirming the decision of the Variance Review and Advisory Committee and the Department of Health to disapprove Petitioner's second variance application. DONE AND ENTERED this 17th day of April, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of April, 2000. COPIES FURNISHED: Connie Biancardi 2820 Howland Boulevard Deltona, Florida 32725-1606 Charlene J. Petersen, Esquire Department of Health Volusia County Health Department 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
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 On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
The Issue Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.
Findings Of Fact BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall: Immediately cease acceptance of all materials on the property. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department: All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990. All records documenting amount of yard trash received at the facility since January 1, 1990. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, 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 16th day of June, 1993. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Howard C. Batt, Esquire 611 Druid Road East Suite 712 Clearwater, Florida 34616 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ken Plante, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
